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AUTHOR: 


FRENCH,  J.W. 


TITLE: 


LECTURES  ON  ETHICS 

AND  JURISPRUDENCE 


PLACE: 


NEW  YORK 


DA  TE : 


1868 


COLUMBIA  UNIVERSITY  LIBRARIES 
PRESERVATION  DEPARTMENT 

DIDLIOGRAPHIC  MICROFORM  TARGET 


Master  Negative  U 


Original  Material  as  Filmed  -  Existing  Bibliographic  Record 


.''^ 


■r  ■'  ^ ' 


171 
t  F888 


ii 


Restrictions  on  Use: 


French,  J 

Lectures  on  ethics  and  jurisprudence,  by  J. 
French.  New  York,  Van  Nostrand,  1868. 

65  p.  fold,  table. 

Bound  with  French,  J.  W   Practical  ethics. 
1868. 


W. 


70330:^      ^ 


:■; 


1' 


TECHNICAL  MICROFORM  DATA 


FILM     SIZE: J^-Jh. REDUCTION     RATIO:__ 

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MPNUFPCTURED   TO  fillM  STfiNDfiRDS 
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LECTURES 


ETHICS  AND  JUEISPRUDENCE. 


BT 


J.  W.  FRENCH,  D.D., 

PROFESSOR  OF  ETHICS,  ETC.,   IN  U.  S.   MILITARY  ACADEMY,  WEST  POINT. 


.:')! 


V  6  11  0  1 vil)t'rTo6eg, 


SoPHOOLKS,  (Ed.  Tj/r.,  865,  ft. 


NEW  YORK: 
D.  VAN  NOSTRAND,  192  BROADWAY. 

1868, 


Ekteeed,  according  to  Act  of  Congress,  in  the  year  1SC4,  by 

J.    W.    FEENCH,  D.  D., 

In  the  Clerk's  Office  of  the  District  Conrt  of  the  United  States  for  the 
Southern  District  of  New- York, 


C  ▲.  ALVOBD,   STEBKOTYPKB  *  PBINTKB.. 


CONTENTS. 


LAW   UNIVERSAL. 

LECTURE  I.  PACB 

Rules  for  studtixg  the  Subjects 5 

LECTURE  IL 
Common  Principles  :  from  Law  as  a  Rule 33 

LECTURE  IIL 
Definition  op  Law 53 

LECTURE  lY. 
Divisions  of  Law 

LECTURE  V. 
Effect  op  Law 

LAW    HUMAN. 

GENERAL    AND    CONNECTED    VIEW. 

LECTURE  VL 
Science  of  Political  Organization 

LECTURE  YIL 
Law  of  Nations 

LECTURE  YIII. 
Municipal  Law 

LECTURE  IX. 
Ethical  Science 

SPECIAL  view. 
LECTURE  X.— XYIL 
Constitution  op  the  United  States 

LECTURE  XYin.— XXYIIL 
International  Law • 


,i 

^    ■  ! 


:M, 


:  I 


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I  I 


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pq 
m 


pR 


P3 


pa 


i 


I 


\y 


\  I 


Habits,  Mental,  for, 


-i 


MAP    OF    SCIENCES    AND    ARTS. 


1.  ExwwKOB, I  to  be  known,. .. . 

2.  AonoNO, j  to  be  done, 


SCIXNOS. 
AST. 


Existence  U. 


A.    THE    SCIKNCKS   (capable   of  resulting   Arts) : 

f  1.  Eepresentative inisij^ns, forming]  I.  Rkpeesentative  SonwoM 

2-  ^'e''°*l inJThonghts, forming]  11.  Mental  Sciences; 


a  External, in-j  Things,. 


.forming]  III.  Material  Sciences. 


Ha 
^  til 

^  ■«-> 
»5f  J 

*8B 


1.  Universal,.. 


I.    REPRESENTATIVE  SCIENCES. 


SiONS  (for  Thooghti  and  Things),  are., 


■  ^rduoX':'"^.'^.^  1 8"TKM ,„  j 


2.  Conventional,  <  Lan ovaoe, 


Uombinations  of  Ele-j  p 
.    inents,  reduced  to. . .  j  ^^^osso, .. 


1.  Meanings, 

2.  Derivations, 

'  1.  Conformity  to  usage, . . . . 

2.  Reasoning,. .. . , 

8.  Pleasing  and  InstructlDg, . 
,  4.  Persuading, 


1 


-   „       .      .       I  ( 1.  I*artlcular, 

8.  Notatlonal,....j8TiiBOM,...^  ] 

'  I  a.  beneral, , j 

1 i 


j  Logistic. 

]  Classification  (by  C^tegorMsX 
Philology. 
Gbammae. 
Logic. 

LlTERATUEE. 

Rhetoric. 
Arithmetic. 
]  Analytics....]  Algebra,  Ac 


H 


S 


Hi 


II.    RIBNTAL  SCIENCES. 

1.  Of  Intellect,  to  (  t,  ^  , 

what  must  be ;. .  "J  ^^  mental  coaceptions  of  Quantity, . 

1.  As  Beautiful, ', 


'I 


} 


1.    DiBXOTIVB, 


2.  Of  WIL^  to  what 
ought  to  be; 


2.  As  Good, ]  PouTT,. 


•<  Geometry. 

*  *  * ' ■}  ^Esthetics. 

1.  Constituting  for  ac-  j  ^       ^  | 

tion, r -j  0»GA*izATiON, ]  Science  OF  Oeganizatiok. 

r  1      TT_: 1  I 

,  2.  Guiding  action, i  Law, 


'  1.  Universal, j 


.2.  Limited,.. 


2.  Dbsobiptivb. 


8.  As  Perfect, 
8.  Of  the  whole  man,  to  what  he  ought  to  know  and  do, P'  ^^^  eternal  life, 

(  1.  By 
(2.  By 


1.  For  men  col- 
lectively, 

2.  For  man 
singly, 


For  mortal  life,. 


NOMICS. 


inward  analysis, 

outward  observation,  for  knowing  men's  natures,. 


Jubispeudencb. 

Ethics. 

Theology  (Practical). 

Theology  (Universal). 

Education. 

]  Psychology. 

\  PuYSiOGNosY  \  ethnology, 
(  }  Phrenology, 


1 


Ate. 


III.    SIATERIAIi  SCIENCES. 

Eabth,., 


i 

Si 


1.  Of  Faoib,  for  Laws,. 


■j  DisoBiFTm; 


1.  In  order  of  Space,.. 


j  Surface, . .  . . . 
(  Whole  planet,. 


(  «  (  Physical, 

'  Gboobaphy.  . .  ■{  Mathematical, 
i  Political. 
Geology. 


' 


1.  Inorganic,. Chbmistby. 


CoMBiNATioics   OF  I  2.  Seml-organlc,. i  Ckystalloobaphy 


.     Matter, 


.8.  Organic,. 


f  1.  Mak  j  1.  Collectively,. ]  History j  Of 

.2.  In  order  of  Time,..  J  I  2.  Singly, Biography. 

U-  Time, i  CHRONOT.oflv 


j  Veg.  Phyaiology 

Botaky j  Agriculture,  4c 

f  Zoology, 

Z00N©MY ]d"5^**Py» 

Medicine, 
.Surcery,  t^. 
Of  £in])irea, 
^'  Racea, 
Ideas,  A«. 


f  1.  Forces  and  Motions,. 


1  Of  Laws,  for  Faot^ j  Deductive;   having  for  their 

I     eubject, 


2.  Units  of  Substance, i  Atomics. 


Chronology. 
Mechanics. 


8.  Undulations,. 


.4.  Combinations        of  (  Movements  of  the  Masses.   ... 

Force    with    Sub-j  ^ 

stances  in  Masses,  |  Origin  of  the  Substances, 


'Optics. 

ELECTRICfi. 

Thbrmotios. 
Acoustics. 
Astronomy. 
Cosmogony. 


1.  Necessity,. i  l.  Mechanic  Abtb,.  .  1 


It 
o 


2.  Utility,. 


8.  Pleasure.. 


2.  Useful Abts,..., 
8.  Fine  Arts, 


B.    THE    AIRIOS    (capable  of  resulting   Sciences) : 
Not  here  subdivided. 


4  Defence, J  *•  Destructivb  and  J  Art    of    Wab, 

I        Defensivb }     oertaining  to. . 


Things, 


Persons,. 


(Fortifications. ]  Engineering. 


( Arms  and  Equipments, 
Organization, 


Movements, . 


1.  Parts,  as  support  for  the  whole. 

On  land  and  sea,. 

2.Whole,  asdirect-J  ^ 
*•        Ing  each  part,,  i"'^  ■**»• 


On  land, 


Ordnance,  Ac 

Organization  of  ABiOBa 

TJaotics. 

Strategy. 

Navftactics. 

Geotactics. 


t 


1 


LECTURE    I. 


ETHICS  AND  JURISPRUDENCE. 

1.  Their  Position  in  a  Map  of  the  Sciences  :  2.  Distinctive 
IIabits  of  Mind  required  in  Studying  them. 

Gentlemen:  The  subjects  on  wliicli  we  now  enter  are 
divisions  of  Ethics  and  Jurisprudence. 

Standing  on  the  threshold,  you  ask  two  natural  and  neces- 
sary questions:  1.  "What  is  tlie  Position  of  these  Subjects  in  a 
Map  of  the  Sciences  ?  2.  With  what  Specific  Habits  of  Mind 
can  we  most  successfully  study  them  ?  The  answer  to  the  first 
question  prepares  for  that  to  the  second.  It  is  from  the  neglect 
of  such  preliminary  questions  when  beginning  new  subjects 
that  so  much  time  is  lost  in  the  period  of  Education.  If  they 
are  in  our  books  we  pass  over  them,  to  get  to  the  subject.  The 
common  experience  is,  that  we  learn  how  to  study  a  subject 
after  we  have  studied  and  left  it.  The  conviction  acquired, 
coming  too  late,  is  less  a  benefit  than  a  regret.  Before  it  is 
acquired,  our  interest  is  deadened,  and  our  acquisitions  liin- 
dered,  bv  difficulties  felt  in  their  effects,  not  traced  to  their 
cause.  Tlie  remedies  are  two.  The  first  is  to  view  all  knowl- 
edge as  one,  and  in  learning  any  one  branch  of  Science  or 
Art  to  refer  it  to  its  place,  and  to  kindred  subjects.  As  in 
Geography,  we  begin  with  the  globe,  before  coming  to  one 
country;  as  in  History,  we  trace  the  thread  of  universal,  be- 
fore the  details  of  particular  History  ;  as  we  acquire  general 


I       i 

I 


6 


HOW   SCIENCES    ARE   DIVIDED. 


before  professional  learning,  so  must  it  be  in  every  plan  for 
pleasant  and  profitable  study.  The  second  remedy  is,  to  per- 
(;eive,  distinctly,  and  before  advancing  in  it,  the  specific  liabits 
of  mind  required  by  each  branch  of  knowledge.  You  will 
then  consider  these  two  inquiries  with  the  interest  which  they 
deserve. 

1.  What  is  the  position  of  these  subjects  in  a  map  of  tjie 
Sciences  ? 

The  Sciences  may  receive  various  classifications.  Tlie  most 
natural  and  simple  arrangement  is  that  made  by  nature.  It  is 
founded  on  a  distinction  known  to  all  children  and  to  all  men. 
It  is  the  distinction  of  the  objects  of  knowledge  into  tiling:^, 
thoughts,  and  signs.  Things  are  external  to  us  ;  tlioughts,  in- 
ternal ;  and  signs,  expressive  of  both.  The  sciences  of  things 
are  called  Material  Sciences.  An  example  of  these,  when  de- 
scriptive, is  Geography;  and  when  deductive,  Mechanics  or 
Astronomy.  Those  of  Thoughts  are  Mental  Sciences.  Exam- 
ples are  in  the  very  subjects  which  we  are  about  to  investigate; 
Ethics  and  Jurisprudence,  whose  place  is  in  this  family.  Those 
of.  signs  are  Representative  Sciences.  An  example,  in  conven- 
tional signs  called  Language,  is  Grammar,  or  Literature,  and 
in  notational,  Arithmetic  or  Algebra.  Such  is  a  simple 
arrangement  of  the  Sciences  in  three  great  families. 

By  referring  to  the  appended  map  of  the  Sciences,  you  will 
see  this  arrangement  executed. 

First  in  order  is  the  group  of  Representative  Sciences ;  tlien 
that  of  the  Mental ;  then  that  of  the  Material. 

The  subjects  before  us  are  in  the  second.  For  greater  clear- 
ness I  will  recapitulate  the  primary  heads,  repeat  the  divisions 
of  the  mental  group  from  the  larger  tabulated  view,  and  insert 
Bome  explanations. 

Class  :  Su  bj  ect  :  Nam  k  : 


Soir.MOKS 
are  ui 


Question. 

i    thing     1 
and  class  V      *^^j  y 
IS  J  * 

^   „,        ,  I  1.  Descriptive    "  What  is? 

•  2,  Thoughts,     **        Mbntal;.^  I  ought  to 

or  ( 2.  Directive        "         Whai^       or 

(     must 
,3.  Things,  «        Matebial;    *»         What  is? 


I 


bet 


DIVISIONS   UNDEE  POLITY.  7 

Such  are  the  primary  heads.  In  the  first  column  you  see 
the  class ;  in  the  second,  the  subject  of  each  group ;  in  the 
third,  the  name  of  each ;  in  the  fourth,  the  leading  question 
which  each  proposes  to  satisfy. 

Mental  Sciences,  those  of  the  second  group,  are  descriptive 
or  directive.  An  example  of  the  descriptive  is  Psychology,  a 
science  which  describes  the  faculties  of  the  mind  from  their 
internal  operations.  Ethics  and  Jurisprudence  belong  to  the 
directive  division.     I  therefore  repeat  and  unfold  this  division: 


Sciences, 

Mental, 

Di  RECTI  ve; 

their  subject, 

Order. 


(1.  For  Intellect; 
(to  uchat  inuai  be). 


2.  For  WiLi^  {to 
what  ouijht  to  be) ' 


■  By  Conceptions Gkomktbt. 

1.  As  beautiful Esthetics. 

2.  As  jxood .      Polity. 

8.  As  perfect  (oternally  andU„EOLoGT  (practical), 
w'lih  The  Lternul) \  ^^  '^ 


As  our  subjects  lie  under  Polity,  we  will  now  bring  that 
down,  and  divide  it. 


Poutt;  by   ■ 
Order.,  from 
Jieuson.  1 2. 

I 


1.  Constituting  i Organization-  .     •!  5^^"^'^''  ""^ 

foraction;f*^^^^^'^^"®^' ^  Okganization. 

'  1.  Universal Nomics. 

1.   For  men 


Guiding 
action ; 


Law: 


1 


2.  Limited  - 


collectively 
all  actinirfor 
jrood  of  each. 
2.  For  man 
singly:  (each 
actinie  for 
good  of  all 
^und  of  self) 


•  JURISPEUDENCK. 


Ethios. 


Directive  Mental  Sciences  have  for  their  subject  Order ;  and 
this  in  the  Intellect  or  the  Will.  Those  for  the  Intellect  re- 
gard what  must  be ;  those  for  the  Will,  what  ought  to  ba 
The  former  are  exemplified  in  Geometry.  Geometry  regulates 
the  intellect,  by  accurate  mental  conceptions,  conformed  to 
things  and  expressible  by  signs.  The  latter,  those  for  will,  con- 
sider what  ought  to  be,  as  beautiful,  or  as  good,  or  as  perfect. 

The  science  for  the  beautiful  is  that  of  Esthetics ;  that 
for  the  good.  Polity ;  that  for  the  perfect,  eternally  and  with 
an  eternal  object,  is  Theology.  Polity  is  order  in  any  sys- 
tem (as  conceived  by  our  reason),  for  some  end  proposed  to 
the  will.  This  order  may  regulate  the  nature  of  the  system, 
constituting  it  lefore  action.    This  forms  organization.    Or,  this 


•i 


.| 


IH- 


^i] 


,«! 


8 


PLACE   OF   LIORAL   AND   LEGAL   SCIENCES. 


order  may  regulate  the  subsequent  action  of  the  system  and 
its  parts.  This  forms  Law.  Law  is  universal  or  limited.  It 
is  universal  as  belonging  to  all  beings.  The  science  which 
treats  of  Law  in  this  Universal  Sense  let  us  call  Nomics.^^  Law 
limited  belongs  to  human  beings.  It  applies  to  men  collec- 
tively, or  man  singly.  For  men  collectively,  it  directs  the 
action  of  a  whole  society  for  the  good  of  each  member,  thus 
forming  Jurisprudence ;  or,  it  directs  the  action  of  each,  both 
for  his  own  good  and  for  that  of  all— thus  forming  Ethics. 
Jurisprudence  and  Ethics  are,  therefore,  divisions  of  Universal 
Law,  and  they,  with  Law,  are  branches  of  Polity. 

We  have  thus  an  answer  to  the  first  inquiry :  Wliat  is  tlie 
position  of  Ethics  and  Jurisprudence  in  a  map  of  the  Sciences  ? 
Theij  helong  to  the  Meiital  Sciences.  In  this  fainily^  they  are 
among  those  which  are  directive  of  the  will  to  good^  private 
andpuUic.  In  this  latter^  and  imder  Polity^  they  pertain  to 
Actian,  and  thus  to  Law.  In  the  domain  of  Universal 
Law^  they  are  limited  to  human  heings.  In  law  limited^ 
Jurisprudence  lelongs  to  that  division  which  proposes puUio 
good  imviediately^  and  private,  derivatively;  Ethics,  to  iha^ 
which  proposes  immediately  private,  and  deiivativdy,  publiG 
goodj\ 

The  second  question  is,  How  can  we  most  successfully  study 
them  ? 

/  answer :  hy  mealing  yoitr  habits  of  thought  to  conform 
strictly  to  the  subject,  and  to  its  leading  question. 

This  is  the  rule  for  all  good  study.  I  will  therefore  show 
you  how  the  same  rule  is  applied  in  each  of  the  three  groups 
of  the  Sciences.  I  will  present  in  each— 1,  Its  subject ;  2,  The 
question  proposed  by  that  subject;   and,  3,  The  habits  of 


♦  From  noinos  (vofiog,)  Law. 

f  It  should  be  kept  in  mind,  that  these  two  forms  of  good  are  necessaril7  and 
perpetually  connected,  and  that,  consequently,  the  two  subjects  of  Ethics  and 
Jurisprudence  cannot  be  wholly  dissevered  without  injury  to  our  understanding 
of  each  of  them.  ^ 


HABITS   OF   STUDY   EEQLTRED.  ^ 

mind  required  by  that  question.  I  will,  then,  and  from  these 
general  rules  for  all  sound  acquirement,  deduce  the  special 
habits  required  by  Ethics  and  Jurisprudence. 

By  such  a  course,  you  will  have  a  double  advantage.  You 
will  learn  how  to  discij)line  the  mind,  and  to  increase  your 
intellectual  power,  throughout  life.  You  will  be  fitted  both  to 
study  the  subjects  before  us  pleasantly  and  well,  and  to  form 
wise  and  sound  opinions  in  morals,  in  laws,  and  in  the  science 
of  government. 

Knowing  well  your  desire  for  condensed  and  precise  repre- 
sentation, I  bring  this  whole  subject  into  a  tabular  view. 
Your  own  minds  can  fill  up  much  of  the  outline. 

[See  Table  on  next  Page."] 

I  will  accompany  this  tabular  view  with  only  so  much  of 
explanation  as  seems  indispensable. 

You  will  observe,  then,  that  eacli  family  among  the  Sciences, 
has  its  specific  subject.  The  subject  fixes  the  question  which 
any  science  or  group  of  sciences  proposes  to  answer.  That 
question,  in  turn,  directs  naturally  to  the  intellectual  habits 
which  are  demanded  by  it.  We  are  to  consider,  therefore,  the 
Subject,  the  Question,  the  Habit,  belonging   to   each   of  the 

great  divisions. 

I  begin  with  the  Eepresentative  Sciences,  because  nature, 
reason,  and  experience  place  them  at  the  commencement  of  all 
learniiiir.  The  child  learns  how  to  speak,  then  how  to  speak 
correctly,  then  how  to  calculate  by  numbers.  Signs  Conven- 
tional, in  Lancruage,  signs  Rotational,  in  Arithmetic,  the  two 
scientific  divisions  of  ail  signs,*  are  thus  put  to  our  very  lips 
by  nature,  f 

*  The  principles  of  Notational  Sigrns  belong  to  Mathematical  Analysis;  those  of 
the  Conventional,  or  of  Language,  when  used  for  reasoning,  to  Logic.  The  prin- 
ciples  of  both,  principles  pertaining  to  aU  signs,  form  a  science,  neglected  in 
modern  times,  named  in  the  Table,  Logistics. 

f  An  obstacle  to  scientific  discovery  is  in  the  disregard  by  scientific  men  of  this 
law  of  nature.     In  English  Science  we  have  learned  Induction  from  Bacon.    At 


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HABITS  FOR  RIPRESENTATIVE   SCIENCES. 


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•saoKaijg  ivixaK  (-2)  "III 


1-"  C^  00  ■^O 


In  tlie  Hcpresentative  Sciences  we  have  for  the  subject,  Slgns^ 
as  representing  thoughts  and  things  in  classes :  so  representing 
themy  within  us  for  the  regulation  of  thought  *  and  loithout  us 
for  specific  purposes.    The  question  arising  from  this  subject  is : 
What  is  represented?    And  this  question  ever  takes  two  divis- 
ions :    1.  In  what  class  is  the  thought  or  thing  which  is  repre- 
sented ?     2.  For  what  purpose  is  it  represented  ?    There  can  be 
no  system  of  Signs  without  classification  into  general  and  particu- 
lar, nor  without  a  purpose.    The  habit  of  mind  corresponding  to 
this  question  is  that  of  lleduction  under  heads.     Tlie  lieads  are 
two :  1.  Heads  of  Significations,  called  Categories  (the  foundation 
of  all  Logic):    2.  Heads  of  Purposes.     In  previous  studies  you 
have  exercised  this  habit  of  mind.     You  have,  in  Grammar, 
reduced  the  significations  of  words,  apart  from  a  sentence,  to 
their  established  heads  of  meaning,  to  their  natural  categories ; 
some,  as  expressing  actions  ;  some,  passions  ;  some,  quantities ; 
some,  qualities ;  and  so  of  the  rest.     You  have  reduced  words 
in  a  sentence  to  heads  of  purposes ;  for  example :  to  assert,  to 
be  subject  to  assertion  ;  to  qualify,  to  modify.     You  have  thus 
formed  the  parts  of  speech.     You  have  discriminated  Ehetoric 
from  Poetry  by  its  purpose — that  of  persuasion.     You  have 
appreciated  Poetry  by  reducing  it  to  its  purpose — pleasure 
through  the  taste,  imagination,  and  emotions,  and  have  not 
said,  with  the  reasoner  over  Paradise  Lost,  "  I  cannot  see  that 
it  proves  any  thing."     You  have,  indeed,  pursued  the  same 
course  in  notational  signs,  those  of  mathematical   analysis, 

last,  Sir  John  Herschel  and  others  have  taught  what  Bacon  began  to  teach  when 
interrupted  by  death,  that  there  must  also  be  Deduction.  What  is  needed  now, 
IS  a  conviction  of  the  necessity  of  the  otlier  strand  for  the  "tlireefold  cord,"  which 
strand  is  Reduction.  We  must  know  the  laws  of  arrangement  by  the  categories 
furnished  through  language.  This  is  needed,  both  for  making  and  stating  discov- 
eries. And  this  Reduction,  under  the  categories  of  Language,  must  precede  Induc- 
tion and  Deduction,  Induction  belongs  to  things,  Deduction  to  thoughts,  Reduc- 
tion to  Signs.  Men  use  the  Notational  part  of  Signs  in  Algebra,  and  the  Calculus 
for  studying  nature.  What  moves  one's  wonder  is,  that  they  do  not  also  use  the 
Conventional  part.  In  all  the  rest  they  proceed  on  the  eternal  correspondence 
between  things,  thoughts,  and  signs.  Why  should  Language,  then,  be  excluded? 
— that  almost  divine  instrument  of  classificatioo  I 


J  '■  i« 


12 


HABITS   FOR  MATEEIAL   SCIENCES. 


HABITS  FOR  THE  MENTAL   SC3EXCES. 


Vd 


reducing  them  to  lieads  of  significations,  and  heads  of  pur- 
poses  in  operations.*  Such  is  tlie  subject,  such  is  tlie  question, 
such  IS  the  method  in  the  Representative  Sciences. 

:N^ext  follow  the  Material  Sciences.     The  subject  in  them  is 
nature  m  its  facts  and  laws.     Nature  includes,  of  course,  Man. 
iSature  and  Man  are  both  considered  in  the  order  of  existence 
and  in  the  order  of  action.  ' 

The  question   is  ever  proposed  by  that  suhject-w/iat  is  f 
This  is  applied  to  any  given  space,  and  any  given  time.     The 
habit  of  mind  correspondent  to  this  question  is  that  of  Obser- 
vation, because  you  are  considering  what  exists,  has  existed,  will 
exist.     Tins  habit  has  two  divisions :  Induction  and  Deduction 
the  necessary  reductions  having  been  learned  from  the  Rei)re' 
sentative  Sciences.     Ey  Induction  we  acquire  facts  for  laws 
By  Deduction  we  derive  laws  from  principles.     For  the  facts 
we  use  memory,  and  for  laws,  as  deduced,  our  reason.     Eut  iii 
these  Material  Sciences,  we  prize  what  we  place  in  the  mem- 
ory and  in  the  reason,  in  proportion  as  it  corresponds  to  reality 
in  nature,  as  shown  by  observation.     We  are  asking  for  what 
%s.     You  have  instinctively  followed  these  processes,  because 
you  found  that  you  could  learn  in  no  other  way.     You  have 
stored  your  memory  from  the  Descriptive  Sciences :  Geography, 
History,  Mineralogy,  and    others.      You   have   applied   vour 
reason  in  the  Deductive  Sciences;  Mechanics,  Astronomy,'and 
those   which   trace   the  graduated    undulations    of   Nature's 
unbounded  ocean.     But  you  have  tested  each  step  by  Observa- 
tion, by  conforming  to  the  ever  present  question,  what  is?    Sup- 
posed  facts  or  laws  you  would  deem  valueless,  because  not  corre- 
spondent  to  reality.   Such  is  the  subject,  such  the  question,  such 
the  method,  correspondent  each  to  each,  in  the  Material  Sciences. 
In  the  Mental  Sciences  the  movement  is  the  reverse  of  the 

*  Of  course,  in  th^e,  the  "  Xotational  Sig^s"  of  Mathematics,  our  second  considera- 
tion  IS,  what  must  be.  But  tliis  results  from  the  nature  of  the  thing  represented- 
quantity.  Our  signs  perfectly  correspond  to  our  thoughts,  and  our  thoughts  to 
things  in  nature.  Hence  comes  the  perfect  certainty  of  the  conclusions.  Lan-  • 
guage,  a  system  of  conventional  signs,  has  not,  as  commonly  employed,  tliia  vtr^ 
fed  correspondence.    Hence  the  uncertainty  of  common  reasouincr.  ' 


last.  It  is  from  our  thoughts  to  external  things.  In  the 
Material,  as  you  observe,  we  pass  from  things  to  thought.  In 
the  Representative,  we  proceed  from  the  Signs  in  both  direc- 
tions ;  internally,  to  thought,  for  its  regulation,  and  externally, 
to  things,  for  an  analysis  of  them.^  But,  in  the  Mental 
Sciences,  we  proceed  from  conceptions  within  us  to  things 
without  us. 

The  Mental  Descriptive  come  under  the  same  rules  with  tlie 
Material  Sciences.  They  need  no  farther  remark.  We  leave 
them  for  the  Directive. 

We  must  separate  here  the  two  divisions  of  the  Directive 
Mental  Sciences;  those  for  the  Intellect  and  those  for  the  Will, 
and  must  see,  in  each,  its  subject^  its  question^  and  its  method. 

The  subject  in  Geometry  is  necessary  truth  in  Mental  Con- 
ceptions of  Quantity ^x^^^P^^^^^^h  correspondent  to  what  exists 
in  nature.^  and  fully  expressible  ly  Signs.  By  necessary  truth^ 
I  mean  any  proposition  whose  contrary  is  mentally  impossible, 
as,  for  example,  that  a  whole  is  greater  than  a  part.  Under 
Signs,  I  include  figures  as  well  as  symbols.  Every  one  of  you 
knows  that  in  Geometry  he  is  directly  occupied  with  the  con- 
ce[)tion,  rather  than  with  the  external  representation  ;  with  the 
circle  or  triangle  conceived,  not  with  that  drawn.  Those  con- 
ceptions are  always  verified  by  nature;  thought  and  tiling,  the 
ideal  and  the  real,  being  correspondent.  The  carpenter  finds 
the  squares  of  the  sides  of  right-angled  triangles  to  be  as 
proved  by  theory.  The  surveyor  finds  the  spaces  of  land 
included  by  lines  cutting  each  other  in  the  same  circle  to  be 
equal,  f 

The  leading  question  arising  from  the  nature  of  the  subject 
is  :    Wliat  must  he  f 

The  correspondent  habit  of  mind  is  that  of  Demonstration. 

♦  Again  we  may  observe  the  necessity  of  Signs,  and  of  Reduction,  as  part  of 
the  scientific  process,  together  with  Induction  and  Deduction.  Language,  as  an 
organism,  in  its  classified  significations,  is  the  great  instrument  for  thought. 

f  If  two  straight  lines  within  a  circle  cut  one  another,  the  rectangle  contained 
by  the  segments  of  one  of  them  is  equal  to  the  rectangle  contamed  by  the  seg- 
ments of  the  other. 


.1    <i 


14 


MENTAL   SCIENCES   DIRECTIVE   OF   WILL. 


MENTAL   SCIENCES   DIEECTIVE   OF  WILL. 


15 


Tliis  includes  Conception,  Intuition,  Inference.  Conception  is 
for  the  subject  of  the  proposition :  for  example,  a  straight  line. 
Intuition  is  for  self-evident  propositions,  which  require  no  rea- 
soning: for  example,  a  straight  line  is  the  shortest  distance 
between  two  points.  These  propositions  come  from  defini- 
tions; definitions  from  classification;  classification  from  an 
exact  conformity  in  thoughts  and  in  words,  to  things.  Hence 
comes  the  perfect  truth  of  the  inferences.  Inference  is  for 
those  propositions,  which  are  (conclusions  drawn  from  the  self- 
evident  by  reasoniiig.  And  the  whole  habit  is  a  contempla- 
tion of  questions  in  which  but  one  side  can  exist.  You  have 
learned  this  habit.  It  has  come  by  practice.  Such  is  the  sub- 
ject, such  the  question,  such  the  method  in  Geometry. 

We  have  thus  seen  the  subject,  the  question,  the  method,  or 
habit,  in  the  departments  of  knowledge  which  you  have  trav- 
ersed. You  now  see  that  in  successful  study  you  adapt  your 
method  of  thought  to  the  specific  matter,  the  subject,  and  to 
its  appropriate  question.  But  now,  to  specify  this  view,  let  us 
come  to  the  other  group  of  the  Mental  Sciences — to  those 
directive  of  Will. 

(1.)  In  the  Mental  Science^^  directive  of  Will,  the  Subject 
is  posslhle  truth,  in  mental  conceptions  of  ends  as  possessing 
Quality,  which  conceptions  are  not  necessarily  corresponderit  to 
what  already  exists,  and  are  not  fully  expressible  hy  means, 

(2.)  Their  Question  is :    What  ought  to  he  f 

(3.)  The  primary  Habit  of  mind  which  they  demand  is  the 
Conception  of  Qualities.^ 

Subordinate  habits  will  be  subsequently  regarded. 

Beginning  with  the  first  statement,  I  will  explain  it  part  by 
part,  and  then  add  some  examples  for  illustration. 

In  this  circle  of  Sciences  (though  in  many  of  their  applica- 
tions, they  are  Arts\  ''  the  Subject  is  possible  truth,"  because 
the  question — what  ought  to  be? — implies  what  may  he,  or 

♦  The  Qualities  are  commonly  in  the  predicate :  as  right,  good,  just,  beautiful, 
perfect,  &c 


may  not  he.      In  this  particular  they  differ  from  the   pure 
mathematics,  which  regard  what  7nust  be. 

By  "  possible"  truth,  I  mean  a  proposition  whose  contrary 
may  exist  because  mentally  possible.  It  is  a  statement  in 
words,  of  that  in  thought,  which,  in  things,  may  be  or  may 
not  be.  For  example,  "  some  human  actions  are  rio:ht."  If 
the  idea  of  a  human  action  always  implied  rectitude,  as  the 
idea  of  a  circle  implies  the  equality  of  the  radii,  all  actions 
would  be  right.  The  contrary  would  be  impossible.  No  actions 
could  be  wrong.  The  proposition  would  belong  to  necessary 
truth.  But  since  some  human  actions  are  right,  such  as  telling 
the  truth,  and  some  wrong,  as  cheating  another,  the  contrary 
exists.* 

By  "  Quality,"  I  mean  a  mental  estimate  through  which  we 
approve  or  disapprove.  "This  building  is  beautiful,  that 
music  disagreeable;"  "The  divine  character  is  perfect,  the 
human  imperfect ;"  "This  action  was  right,  and  that  wrong;" 
"  This  law  is  just,  that  law  is  unjust."  AVe  estimate  the  qualities 
of  beauty,  perfection,  right,  justice.  We  approve  them,  and 
disapprove  their  contrasts.  Quality  belongs  to  all  these 
Sciences,  as  implied  by  the  question,  what  ought  to  be  ?  In 
this,  also,  they  differ  from  the  Mathematics  which  treat  of 
Quantity.  We  shall  subsequently  see,  also,  that  Quality  appears 
in  the  predicate  of  their  propositions  and  questions. 

By  an  "  end,"  I  mean  a  desirable  object  of  the  will.  Hap- 
piness is  an  end,  virtue  is  an  end,  public  justice,  public  pros- 
perity, public  honor,  are  ends.  The  ends  which  we  pursue 
through  action,  or  passively  enjoy  in  possession,  are,  of  course, 
to  have  the  qualities  which  we  approve,  not  those  which  we 
disapprove.  These  subjects  have  ends,  because  they  consider 
what  ought  to  be ;  not  what  is,  but  what  is  to  come  into  being, 
that  is,  to  he-come.  In  this,  also,  they  difier  from  the  Mathe- 
matics and  from  Demonstrative  Sciences,  which  proceed  from 

*  I  reject  here,  for  simplicity,  the  distinctions  of  Logic,  contrary.  Sub-contrary, 
contradictory. 


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16 


MENTAL    SCIENCES   DIliECTIVE   OF   WILL. 


MENTAL   SCIENCES   DIRECTIVE   OF   WILL. 


17 


first  principles  to  conclusions.     But  these  reversely  proceed 
through  means  to  ends. 

By  "  mental  conceptions  of  ends  as  having  qualities,"  I 
mean  ideals  in  thought  of  the  object  desired,  invested  with  the 
qualities  approved.  By  ideals,  I  mean  what  was  originally 
signified  by  the  word,  idea  j  mental  vision,  (Mta,  from  fWw,  I 
see).  An  ideal  is  a  mental  conception  of  that  which  is  to 
become  real,  made  as  distinct  as  if  the  object  were  before  the 
bodily  vision.  Such  conceptions  must  belong  to  these  subjects, 
because  an  end  is  proposed,  which  being  mentally  intended, 
must  be  first  mentally  conceived.  Trace  the  fact  in  examples. 
Tlie  architect  plans  his  building,  sees  it  in  idea,  before  erecting 
it.  The  painter  sees  in  imagination  his  picture  before  he  puts 
it  on  the  canvas.  Tlie  virtuous  man,  the  hero,  the  Saint, 
pursues  his  bright  image  of  excellence.  The  statesman's 
vision  is : 

To  scatter  plenty  o'er  a  smiling  land, 
And  read  [his]  history  in  a  nation's  eyes. 

They  conceive  what  ought  to  be.  These  Subjects  agree  with 
Geometry,  in  requiring  us  to  begin  with  distinct  mental  con- 
ceptions. And  as  there,  your  ]>rogress  is  in  proportion  to  the 
distinctness  of  y<»ur  conceptions  of  Quantity  and  of  the  first 
principles,  so  in  these  studies  your  progress  will  he  iti  j^vopoi'tion 
to  the  distinctness  of  your  conceptions  of  Qualify^  and  (f  final 
purposes.  Geometry,  in  teaching  the  general  habit  of  clear 
mental  conception,  has  prepared  for  a  part  of  the  mental 
habits  required. 

By  the  "  conception  not  being  necessarily  correspondent  to 
what  exists,"  I  mean  the  reverse  of  the  fact  which  we  have 
seen  in  the  Material  Sciences,  and  in  the  Mathematical.  In 
the  Material,  we  begin  with  things.  We  proceed  to  thoughts, 
and  make  the  understanding  the  mere  mirror  of  existing 
nature.  In  Geometry,  we  begin  with  thoughts.  But  the 
practical  value  of  our  conclusions  is  not  in  their  logical  con- 
nection with  the  premises,  for  the  most  absurd  metaphysics 
could  produce  the  same  connection,  but  in  the  primary  corre- 


spondence  established  hetween  our  internal  conceptions,  and  that 
external  nature  which  is  framed    hy  numher,   weight,   and 
measure.     So,  too,  in  all  mathematical  analysis,  by  Symbols, 
we  begin  with  signs,  proceed  from  them  to  thought,  and  finally 
to  things.     But,   again,  the  worth    of   conclusions  does  not 
depend  on  the  exactness  of  the  combinations  in  the  signs. 
Any  system  of  arbitrary  signs  on  any  subject  could  be  made 
to  move  like  a  machine,  in  a  similar  way,  through  possible 
combinations.     The  value  of  the  work  lies  in  the  exact  con- 
formity originally  secured  between  the  signs,  together  with 
their  correspondent  mental  operations  on  the  one  side,  and, 
on  the  other,  nature  as  existing  or  moving.     An  exact  corre- 
spondence to  things,  is,  then,  the  primary  requirement  in  the 
Material  and  Mathematical  Sciences.    But  Ethics  and  Jurispru- 
dence, as  well  as  Esthetics  and  Keligion,  all  of  which  belong 
to  one  group,  by  proposing  the  same  question,  commence  with 
a  contrasted  demand.     The  mental  conception  is  designed  to 
show  what  ought  to  be,  and  not  what  is ;  what  we  desire  by 
will  to  have  existing,  not  what  we  know  by  understanding  to 
be  existing.     Napoleon,  for  example,  found  France  in  anarchy. 
He  set  his  will  on  producing  order.    He  called  into  existence 
the  needful  institutions  and  laws.     Studying  them  now,  we 
say  they  were  what  they  ought  to  have  been. 

By  "  means,"  I  intend  the  whole  action  for  the  end,  inclu- 
ding the  agent  and  his  capacity,  together  with  the  instruments 
and  materials  employed  by  him. 

By  the  conceptions  "  not  being  fully  expressible  by  means," 
I  design  merely  to  state  a  fact  of  common  experience.  It  is 
that  the  outward  work  does  not  always  equal  the  conception. 
I  do  not  say  never,  but  not  ever.  In  some  cases  it  cannot. 
This  results  from  the  limitation  and  impertection  of  means.  In 
the  constitutions  and  laws  of  all  countries,  there  is  much  de- 
sirable which  is  wholly  impracticable,  because  of  the  limita- 
tions of  circumstances.  And  in  the  rest  of  the  group  we  see 
the  same  fact.  The  artist  has  visions  which  he  cannot  embody, 
the  virtuous  man  good  wishes  for  others  which  he  has  not  the 
2 


' '  n 


18 


ME2?TAL   SCIENCES   DIRECTIVE  OF  WILL. — EXAMI'LES. 


HABITS   REQUIRED   BY   SCIENCES   FOR  WILL. 


19 


means  of  executing.  In  this,  these  Sciences  differ  from  tho 
Mathematics,  in  which  all  possible  conceptions  can  pass  from 
the  sphere  of  thought,  to  the  sphere  of  signs,  by  figures  or  by 
symbols. 

We  have  thus  learned  fully  the  nature  of  the  subject-mat- 
ter in  the  group  of  which  Ethics  and  Jurisprudence  form  a 
part. 

I  have  thus  explained,  one  by  one,  the  parts  of  the  first  state- 
ment. 

I  now  add  some  examples,  for  illustration. 

In  Esthetics,  the  quality  considered  is  that  of  beauty.  Tho 
idea  of  the  beautiful  is  formed  as  a  glowing  mental  conception 
in  the  soul  of  tlie  artist,  whether  poet,  architect,  sculptor, 
painter,  musician.  His  materials  are  words,  or  stones,  or 
marble,  or  colors,  or  sounds,  lie  seeks  to  realize  his  ideal  in 
his  material,  guided  by  the  question,  what  ought  to  be  ?  But 
the  execution  is  ever  below  the  conception.  His  power  and 
materials  are  limited. 

In  Religion,  the  quality  considered  is  that  of  perfection.  The 
idea  of  moral  perfection  is  conceived  by  a  religious  man.  He 
seeks  to  give  it  reality  by  his  own  spiritual  and  moral  improve- 
ment, begun  before,  but  attained  in  inmiortality.  His  materials, 
are  in  divine  influence,  and  in  his  own  efforts.  His  question 
is,  what  ought  I  to  be  ?  But  in  this  world  his  attainments  are 
far  below  his  conceptions. 

In  Ethics  and  Jurisprudence,  the  quality  considered  by  both 
is  that  of  human  good,  private  and  public. 

In  Ethics,  the  good  proposed  is,  as  before  stated,  directly 
private,  ajid  derivatively  public  well-being.  The  mental  con- 
ception formed  is  that  of  personal  virtue.  The  materials  for 
giving  reality  to  the  idea  are  the  habits  and  auctions  of  the  m- 
dividual.  His  questions  are,  what  ought  I  to  be  in  habits,  and 
to  do  in  actions?  But  the  mental  conception  of  virtue  shown 
in  every  person's  resolutions  and  intentions,  is  ever  far  above 
bis  actual  conduct.     This  inferiority  of  execution  to  concep- 


tion, of  the  real  to  the  ideal,  also  results  from  the  imperfection 
attending  the  workman  and  his  materials. 

In  Jurisprudence,  the  good  proposed  is  directly  public  weal, 
and  derivatively  private.  The  mental  conception  of  the  legis- 
lator is  a  fair  ideal  of  public  welfare,  of  impartial  justice,  of 
national  glory.  This  is  set  before  his  mind  whether  he  be 
devising  a  constitution  or  a  subordinate  law.  His  question  is, 
what  o^ight  to  he  in  the  public  for  the  common  good  ?  Tlie 
materials  for  giving  reality  to  the  conception  are  laws  organic 
or  subordinate,  made,  executed,  administered.  But  in  the 
practical  working  of  these,  the  good  attained  falls  short  of  that 
intended.  The  real  does  not  reciprocate  with  the  ideal.  The 
conception  is  above  the  execution,  and  from  the  same  cause, 
the  imperfection  of  materials. 

The  parts  and  the  examples  will  make  very  clear  to  you  the 
first  statement.  It  appears  evident  that  in  the  Mental  Sciences, 
directive  of  Will,  the  subject  is  possible  truth.  This  exists 
in  our  mental  conceptions  of  purposes.  These  purposes,  these 
ends,  have  Quality.  Our  conceptions  of  the  ends  and  the 
qualities  are  not  necessarily  correspondent  to  any  existing 
realities.  Our  conceptions  when  complete  are  not  fully  ex- 
pressible by  means. 

We  have  thus  seen,  in  this  circle  of  Sciences,  the  Sulject 

The  second  statement  refers  to  the  Question.  It  is  evident 
that  the  leading  question  arising  from  the  Subject,  is,  perpet- 
ually, what  ought  to  he  ? 

The  third  statement  pertains  to  the  mental  habits  which  are 
required  for  this  subject  and  by  this  question. 

The  primary  mental  habit  demanded  is  the  Conception  of 
Qualities.  The  quality  proposed,  whether  the  beautiful,  the 
good,  the  perfect,  is  to  be  made  mentally  a  vivid  idea,  or  yet 
more  strictly,  an  ideal.  It  will  assist  you  to  observe  now  one 
simple  and  interesting  fact  already  indicated.  The  quality 
which  you  are  thus  to  form  into  a  clear  conception  lies  through- 
out these  subjects,  in  the  predicate  of  your  propositions.  But 
in  Geometry  the  side  of  the  proposition,  where  distinct  concep- 


:;  < 


ilS 


1 1  n 


20 


CONCEPTION   OF    QUALITIES  DEMANDED. 


ABSOLUTE  NEED   OF  PEOPORTION. 


21 


tions  of  qualities  must  be  formed  with  primary  care,  is  that  of 
the  Subject.  "This  picture  is  beautiful;"  "This  action  is 
virtuous;"  "This  law  is  just;"  "Such  a  nature  or  character  is 
perfect :"  these  are  examples  of  propositions  in  this  group  of 
Subjects.  It  is  plain  that  the  key  to  each  lies  in  my  distinct 
conception  of  the  predicates  ;  of  beauty,  virtue,  justice,  perfec- 
tion. But  in  these  propositions :  "  The  triangle  contains  three 
right  angles;"  "The  circle  subtends  a  right  angle  on  its 
diameter ;"  "  Parallel  lines  make  the  alternate  angles  equal," 
it  is  plain  that  the  key  to  knowledge  is  in  the  clear  conception 
of  the  subjects  "triangle,"  "circle,"  "parallel  lines."  For 
both  kinds  of  propositions  then  there  must  be  clear  mental  con- 
ception. But  in  these  which  regard  what  ought  to  be,  that 
conception  is  to  be  primarily  of  the  Quality  attributed  or  to  be 
attributed. 

This  Conception  of  Qualities  is  clearly  different  from  the 
mathematical  conception  of  Quantities  as  Subjects. 

This  conception,  then,  is  the  primary  mental  habit,  which 
these  studies,  from  their  nature,  must  demand. 

This  fundamental  habit  has  three  natural  applications.  It, 
and  the  applications,  have  one  inevitable  condition.  The  ap- 
plications are  by  Apprehension,  Sentiment,  Judgment.  The 
inevitable  condition  is  Proportion. 

Apprehension  is  an  understanding  of  every  circumstance  in 
the  thing,  the  subject  presented,  as  a  picture,  an  action,  a  law, 
a  character.  Sentiment  is  an  estimate  of  Quality  by  the  pas- 
sive reception  of  impressions,  aud  the  comparison  of  the  thino- 
with  the  ideal  conception  before  reasoning.  For  example,  I 
witness  a  mean  and  cruel  action.  I  feel  instantly,  before  de- 
liberation, its  moral  quality,  by  native  moral  sense.  The 
action  differs  from  my  conception  of  right.  Judgment  is  a 
justification  of  the  estimate  by  reasoning.  I  prove  to  the  man 
or  to  myself,  or  to  another,  that  he  did  act  basely  and  cruelly. 
Such  are  the  applications.     Next,  mark  the  condition. 

Proportion  is  the  medium  between  too  much  and  too  little, 
or  relative  equality.    It  is  the  inevitable  condition  in  all  ques 


tions  of  Quality,  in  all  cases  where  we  consider  what  oudit  to 
be.  Disproportion  introduced  into  any  work  of  Nature  or 
Art  will  turn  beauty  into  deformity.  A  hand  may  be  lovely 
in  itself,  but  it  ceases  to  please  in  the  living  person,  or  picture, 
or  statue,  when  too  large  or  too  small  for  the  body  to  which  it 
is  attached.  It  is  so  in  Ethics,  where  the  Yirtues  appear  as  a 
medium  between  vices.  (Prac.  Etli.,  ch.  i.,  20.)  Tlie  same  rule 
extends,  as  we  shall  see,  to  all  ors^anizations  of  Government, 
and  to  all  Laws.  Disproportion  will  make  the  same  elements 
of  Government  injurious,  which,  in  due  proportion,  were  bene- 
ficial. Disproportion  will  cause  a  law  to  w^ork  injustice,  whicli,  . 
by  due  measure,  would  have  been  just.  This  absolute  neces- 
sity for  Proportion  results  from  the  nature  of  the  subject-mat- 
ter, Quality.  All  Qualities  have  degrees  and  opposites.  It 
is  a  familiar  fact  that  the  qualifying  word,  the  Adjective,  has 
degrees  of  comparison  in  this,  as  in  all  human  languages. 
This  is  evidence  tliat  qualities  have  degrees.  The  extremes 
of  degree,  by  excess  or  defect,  are  contrasts ;  as  heat  and  cold, 
whose  medium,  as  proportioned  to  man,  is  the  temperate. 
Disproportion  must  change  the  degree,  and  when  excessive, 
will  generate  the  contrast.  This  law,  tlien,  is  inherent  in 
qualities.  It  attends  those  belonging  to  this  group  of  sub- 
jects. Proportion  is  essential  for  Beauty,  Virtue,  Public 
Justice,  Public  Welfare,  Peligion."*  Excess  or  defect  will 
remove  the  quality  approved,  and  substitute  that  which  we 
cannot  approve.  Proportion,  the  observance  of  the  just 
mean,  is,  therefore,  the  indispensable  condition  in  this  entire 
group.t 

Conception  of  Qualities  is,  then,  the  fundamental  habit; 
Apprehension,  Sentiment,  Judgment,  are  its  applications. 
Proportion  is  the  indispensable  condition  for  making  Concep- 
tion, Apprehension,  Sentiment,  or  Judgment  just  and  true. 

*  Religious  virtues  must  have  proportion  to  an  infinite  object,  and  be  mutually 
proportioned  to  each  other. 

f  The  ancients  made  Morals  a  branch  of  Music,  that  is,  of  proportion  aud  har- 
mony.   Plato,  De  Rep. ;  Strabo,  1 0th  b. 


22 


SPECIxVL   EULE3   FOE   ETHICS   AND  JUEISPEUDENCE. 


THE   FIRST  EULE. 


23 


You  will  observe  that  in  these  subjects  a  proposition  is  pre- 
sented, put  as  a  question:  "Is  the  Parthenon  beautiful?" 
Eeasons  (which  are  called  in  Logic  the  middle  terms  or  term) 
are  employed  for  the  affirmative  and  negative.  Conception,  as 
you  see,  belongs  to  the  predicate  of  the  proposition,  as  "  Beau- 
tiful :"  Apprehension,  to  the  subject,  as  "  the  Parthenon :" 
Sentiment,  to  the  whole  proposition,  as  the  "Parthenon  is 
beautiful :"  Judgment,  to  the  middle  term,  as  "  What  is  no- 
wliere  defective^  is  beautiful."     Proportion  belongs  to  all. 

These  are  the  general  habits  of  Mind.  I  now  apply  them 
in  five  special  rules  of  thought  for  Ethics  and  Jurisprudence. 

In  Ethics  and  Jurisprudence  : 

1.  Form  clear  conceptions  of  Moral  and  Legal  Purposes. 

This  rule  applies  the  first  general  habit. 

In  Purposes,  I  include  their  required  qualities.  In  Moral 
and  Legal  Subjects,  such  conceptions  of  purpose  are  what 
those  of  first  principles  are  in  the  exact  Sciences ;  they  are  the 
fountains.  All  conclusions  by  demonstrations  are  implied  in 
the  primary  definitions  and  axioms,  and  are  deduced  consecu- 
tively. So,  Moral  and  Legal  Propositions  are  enveloped  in  the 
purposes  of  Ethics  and  Jurisprudence,  and  are  developed  suc- 
cessively. As  in  demonstrative  knowledge,  your  progress  de- 
pends on  your  perfect  understanding  of  the  primary  principles  ; 
so  in  these  subjects,  now  offering  you  welcome,  your  advance- 
ment will  depend  on  your  distinct  conceptions  of  Moral  and 
Legal  Purposes,  with  their  required  qualities.  For  example, 
the  departments  of  Jurisprudence,  lying  before  you,  are.  Con- 
stitutional, International,  Military.  The  Constitutional  is  the 
Science  of  the  Organization  of  Governments  for  Nations. 
Tliis  Political  Science  presents  a  great  purpose — the  union,  in 
one  political  body^  of  the  most  varied  diversities,  for  Public 
Welfare,  Justice,  and  Virtue.  The  ttiore  distinctly  you  perceive 
that  purpose,  the  better  can  you  understand  and  estimate  by 
its  qualities  the  political  organization  of  any  people.  In  the 
Constitution  of  the  United  States,  that  purpose  is  given  in  its 
preamble.    It  includes  "Union,"  that  blends  all  differences 


into  harmony ;  "  Justice,"  executed  externally  and  within  ; 
"  Tranquillity,"  through  law  or  force  f  "  Defence,"  against 
other  nations  ;  "  Welfare,"  for  all  interests ;  "  Liberty,"  pres- 
ent and  prospective,  for  all  rights.f  When  you  bring  into  one 
conception  these  lineaments  of  the  fair  ideal  of  our  fathers, 
when  you  make  the  image  more  vivid  by  the  contrasted  evils 
averted — Disintegration,  Injustice,  Civil  Discord,  Conquest  by 
the  Foreigner,  Public  Misery,  Tj^ranny — then  the  mind  is  pre- 
pared both  to  appreciate  the  provisions  of  the  Constitution, 
and  to  understand  the  reasons  of  the  laws  formed  under  it. 
So,  for  International  Law  there  is  embodied  in  its  Code  the 
idea  entertained  by  nations  of  "  what  ought  to  be"  in  their 
mutual  intercourse.  There  is  the  idea  of  what  is  due  by  a 
nation  to  others,  and  to  itself;  and  to  itself,  not  in  the  time  of 
one  generation  only,  but  for  its  long  existence,  and  for  the 
name  which  it  will  leave  in  history.  The  more  distinctness 
you  give  to  your  mental  conception  of  this  ideal  of  public 
justice,  interest,  and  virtue,  the  more  of  apprehension  and  of 
sound  judgment  can  you  extend  to  the  maxims  and  questions  of 
International  Jurisprudence.  So  in  the  "  Eules  and  Articles  of 
War,"  the  purpose  proposed  is  the  good  of  the  service  through 
Discipline,  Justice,  and  Subordination  to  Law,  as  administered 
by  persons.  Seeing  the  end,  you  can  estimate  the  excellence 
of  those  arrangements  derived  in  outline  from  two  warlike 
nations — Kome  and  England.  In  that  part  of  this  admirable 
Code  which  pertains  to  Military  Courts,  there  is  a  perpetual 
aspiration  to  make  so  real  the  idea  of  impartial  and  unsullied 
justice,  that  no  one  shall  ever  receive  wrong  from  a  soldier's 
tribunal.  When  that  conception  of  justice  is  embodied  in 
your  own  thought,  must  you  not  have  a  more  ready  compre- 
hension of  the  principles  and  the  practice ;  of  what  is  legal 
and  what  regular  ?  These  are  examples  from  divisions  of  Law. 
But  the  same  natural  necessity  for  a  primary  conception  of 

*  "  Lex  aut  vis  valet." — Bacon. 

\  See  the  Preamblo  to  the  Constitution. 


l,i!i 


i 


24 


THE   SECOND  KtJLE. 


THE   THIRD   RULE. 


25 


purpose  and  quality  attends  Ethics.  Its  direct  pm-pose,  as  we 
have  seen,  is  die  good  of  the  individual  through  virtue.  Make 
distinct  in  the  mind  the  image  of  that  personal  nobleness,  to 
wliicli  the  science  of  Murals  seeks  to  guide  you  through  good 
living,*  and  you  are  prepared  to  comprelieud  Ethical  prin- 
ciples with  a  kind  of  intuition.  The  necessity  of  the  first  rule 
U  thus  made  evident. 

A  common  liindrance  in  the  study  of  these  subjects  comes 
from  the  neglect  of  this  primary  action  of  the  mind. 

1  uu  may  a.<k  Jiow  these  conceptions  are  to  be  obtained  ;  I 
antirer,  from  Nature.  They  are  in  every  man's  mind.  We 
Lave  but  to  call  for  conceptions  of  riglit,  of  public  justice,  of 
virtue,  of  true  welfare,  and  they  stand  before  us. 

This  rule  applies  si^ecially  to  the  predicates  of  moral  and 
legal  proiHjtitious :  as  *'  This  action  was  right ;"  "  This  law  is 

2.  DU:runhiate  cauB  ly  careful  attention  to  every  circum- 
wmM  in  each  aik^. 

This  is  the  general  habit  of  Apprehension  belonging  to  the 
whole  gn»up,  applied  now  to  Ethics  and  Jurisprudence.  This 
Labii  has  Ux*n,  it  is  supi>osed,  fully  formed  by  other  studies. 

Tliisisecond  rule  applies  ppeeially  to  ''thesuhject;'  in  moral  and 
il  proiM»sitions:  as,^'7y,/.v  action  was  right;"  " This jyarticu- 
larluio  is  just.''  We  study  thoroughly  the  particular  thing  of 
whirh  a  moral  or  legal  quality  is  athrmed  or  denied. 

The  neglect  of  this  rule  forms  a  common  and  serious  hin- 
drauee  iu  tlu-e  subjects.  Even  active  and  disciplined  minds 
OKiIUte  between  this  rule  and  tlie  former.  Some  conceive 
vividly,  but  do  not  study  cases  thoroughly.  Some  attend  to 
mmrr  puriicuLir  in  the  subject,  but  do  not  develop  their  moral 
and  legal  conceptions. 

S.  J^^f  the  jtropMition  ly  i/istinctive  sentiment  lefore  reason 
ing  %ip*m  it. 

This  is  an  application  to  Ethics  and  Jurisprudence  of  senti- 
ment, the  third  of  the  previous  habits  required  for  the  whole 

•  "  Are  bene  Vivendi." 


group  \}j  the  prominent  question.  But  your  very  special 
attention  is  called  to  this  rule.  The  neglect  of  it  is  a  fault 
almost  universal,  and  universally  attended  with  most  injurious 
consequences,  not  only  in  studies  but  opinions;  not  in  the 
latter  only,  but  in  life ;  and  not  merely  in  life,  but  in  the 
habitual  estimates  which  we  form  of  Morals  and  Laws  them- 
selves. 

You  will  observe,  then,  that  this  neglected  rule  results  from 
the  very  nature  of  moral  and  legal  considerations.  The  con- 
sideration of  "  what  ought  to  5^,"  implies  that  some  good,  as 
private  virtue,  or  public  justice  and  the  like,  is  proposed. 
These  objects  do  not  address  our  reason  so  directly  as  they  do 
our  moral  sensibilities,  our  inborn  sense  of  rijrht  and  wronff 
They  are  qualities  for  whicli  we  are  provided  with  a  moral 
sense,  as  for  light  and  colors  we  have  an  eye,  and  for  sounds 
an  ear.  Eeasoning  has  its  place,  as  it  has  in  correcting  the 
estimate  of  distances  seen,  or  of  sounds  heard.  But  it  is  in 
vain  to  attempt  an  understanding  of  Ethics  and  Jurisprudence 
by  abstract  reasoning,  apart  from  all  moral  perception.  Such  a 
plan  of  thought  is  unnatural,  unnecessary,  irrational.  By  mere 
abstract  reasoning  from  premisses  we  can  prove  or  disprove 
any  thing.  The  liar,  the  thief,  the  murderer,  will  no  doubt 
answer  you  with  abundant  reasons.  Any  one  of  us  can  argue 
himself  into  a  belief  that  any  tiling  wrong  which  he  desires  to 
do,  is  right.  But  you  will  bear  in  mind  that  the  question 
ever  before  us  is,  "  what  ought  to  heP  It  is  not — what  may  be 
proved.  And  to  estimate  what  ought  to  be,  we  have  some- 
thing quicker  in  act  than  discursive  reasoning.  We  have 
intuitive  sentiment.  This  sentiment  in  its  full  activity,  there- 
fore, is  necessary,  because  it  is  the  organism  provided  by  nature 
and  by  its  Author.  Unless  you  bring  it  to  these  subjects, 
instruction  on  them  is  discoursing  on  colors  to  the  blind, 
on  music  to  those  who  cannot  distinguish  one  tune  from 
another. 

This  rule  applies,  as  you  observe,  to  the  whole  proposition, 
as  distinguished  from  the  reasons  for  or  against  it. 


I 


ir 


24 


THE   SEOOXD  BULK. 


purpose  and  qualitv  attends  Etiiics.  Its  direct  purpose,  as  we 
have  seen,  is  the  good  of  the  individual  through  virtue.  Make 
distinct  in  the  mind  the  image  of  th^  personal  nobleness,  to 
which  the  science  of  Morals  seeks  to  guide  jou  through  good 
living,*  and  jou  are  prepared  to  comprehend  Ethieal  prin- 
dples  with  a  kind  of  intuition.  The  necesdlj  of  the  first  rule 
15  thus  made  evident. 

A  common  hindrance  in  the  study  of  these  subjects  comes 
from  the  neglect  of  this  primary  action  of  the  mind. 

You  may  ask  how  these  conceptions  are  to  be  obtained  ;  I 
answer,  from  Kature^  They  are  in  every  man's  mind.  We 
have  but  to  caU  for  conceptions  of  right,  of  public  justice,  of 
virtue,  of  true  welfare,  and  they  stand  before  us. 

This  rule  applies  speciaDy  to  the  predicates  of  moral  and 
l^al  propositions :  as  ''  This  action  was  right;''  "  This  law  is 
JnstJ" 

2.  Diseriminate  cases  ly  careful  atteniian  to  every  circtim' 
stance  in  each  one. 

This  is  the  general  habit  of  Apprehension  belonging  to  the 
whole  group,  applied  now  to  Ethics  and  Jurisprudence.  This 
habit  has  been,  it  is  supposed,  fully  formed  by  other  studies. 

This  second  rule  applies  specially  to  "  the  subject,''  in  moral  and 
legal  propositions :  as,  ''This  action  was  right ;"  "  This  particu- 
lar law  is  just."  We  study  thoroughly  the  particular  thing  of 
which  a  moral  or  legal  quality  is  affirmed  or  denied. 

The  neglect  of  this  rule  forms  a  common  and  serious  hin- 
drance in  these  subjects.  Even  active  and  disciplined  minds 
oscillate  between  this  rule  and  the  former.  Some  conceive 
vividly,  but  do  not  study  cases  thoroughly.  Some  attend  to 
everv'  particukr  in  the  subject,  but  do  not  develop  their  moral 
and  legal  conceptions. 

3.  Test  the  proposition  ly  instinctive  sentiment  hefcre  reason 
ing  upon  it. 

This  is  an  application  to  Ethics  and  Jurisprudence  of  senti- 
ment, the  third  of  the  previous  habits  required  for  the  whole 

*  "  Are  bene  vivendL" 


THE   THIED  EULE. 


25 


group  by  the  prominent  question.  But  your  veiy  special 
attention  is  cdled  to  this  mle.  The  neglect  of  it  is  a  fault 
ahnost  umversal,  and  univcKally  attended  with  most  injurious 
consequences,  not  only  in  studies  but  opimons;  not  in  the 
latt»  only,  but  in  life;  and  not  merely  in  life,  but  in  the 
habitual  estimates  which  we  fo™  of  Morals  and  Laws  them- 
selTea. 

Ton  .on  ok«Te,  Aeimhat  this  neglected  nde  results  fitan 
the  veiy  nature  of  moml  and  1«^  considerations^    The  con- 
sideration of  <^what  ought  to  ie,"  implies  that  some  good,  as 
private  virtue,  or  public  justice  and  the  like,  is  proposed. 
Th^  objects  do  not  address  our  reason  so  directlj  as  they  do 
OUT  moral  sensibiLties,  our  inborn  sense  of  r%ht  and  wrono- 
They  are  qualities  for  which  we  are  provided  with  a  morS 
sense,  as  for  l%ht  and  colors  we  have  an  eye,  and  for  sounds 
an  ear.    Reasoning  has  its  place,  as  it  has  in  correcting  the 
estimate  of  distances  seen,  or  of  sounds  heard.    But  it  is  in 
vain  to  attempt  an  understanding  of  Ethics  and  Jurisprudence 
by  abstract  reasoning,  apart  from  all  moral  perception.    Such  a 
plan  of  thought  is  unnatural,  unnecessary,  irrational.    By  mere 
abstract  reasoning  from  premisses  we  can  prove  or  diWove 
any  thing.     The  liar,  the  thief,  the  murderer,  will  no  doubt 
answer  you  with  abundant  reasons.    Any  one  of  us  can  ar-ue 
himself  into  a  belief  that  any  thing  wrong  which  he  desired  to 
do,  13  right.     But  you  wiU  bear  in  mind  that  the  question 
ever  before  us  is,  "  what  mtgU  to  le."    It  is  not-what  may  be 
proved.    And  to  estimate  what  ought  to  be,  we  have  some- 
thing quicker  in  act  than  discursive  reasoning.     We  have 
intuitive  sentiment.     This  sentiment  in  its  full  activity,  there- 
fore, is  necessaiy,  because  it  is  the  oiganism  provided  by'nature 
and  by  its  Author.      Unless  you  bring  it  to  these  subjects, 
instruction  on  them  is  discoursing  on  colors  to  the  blind, 
on  music  to  those  who  cannot  distinguish  one  tune  from 
another. 

This  rule  applies,  as  you  observe,  to  the  whole  proposiUon, 
as  distinguished  from  the  reasons  for  or  against  it. 


y 


26 


THE  FOCETH  BDLE. 


i 


In  all  knowledge,  a  clear  understanding  of  a  proposition  is 
half  of  the  solution — "  montrer^  c^est  demontrerP  You  can 
now  see  the  value  of  the  three  rules  thus  far  given,  bj  observ- 
ing that  thej  give  you  a  complete  possession  of  the  proposi- 
tion; the  first,  by  its  predicate;  the  second,  by  its  subject; 
and  this  third,  by  the  union  of  both,  tested  by  impressions. 

4.  In  jproving  or  dwproving^  unite  authorities  with  reason- 
ing^ and  conduct  the  latter  ly  the  jprobdble^  and  not  hy  the 
demonstrative  method. 

This  is  an  application  to  these  subjects  of  the  general  habit 
of  judgment,  the  fourth  of  those  given. 

After  the  proposition  has  been  thoroughly  taken  in  head 
and  heart,  the  next  step  is  to  consider,  in  cases  where  more  is 
necessary,  the  arguments  for  and  against.  These  are  of  two 
kinds — authority  and  reason.*  In  authority,  we  have  proof 
from  others;  in  reasoning,  from  ourselves.  In  Ethics  and 
Jurisprudence,  both  must  be  used,  and  authority  predominate. 

But  the  reasoning  must  be  by  the  probable,  and  not  the 
demonstrative  method. 

This  rule  results  from  the  nature  of  all  moral  and  le^al 
questions.  They  have  two  sides.  Hence  the  habit  of  mind 
must  be  that  of  viewing  both  sides.  This  forms,  as  shown  in 
Logic,  the  distinction  between  probable  reasoning  and  mathe- 
matical demonstration.  In  Mathematics,  there  is  but  one  side 
to  every  question.  In  them  we  consider  what  must  be.  That 
-which  is  contrary  to  the  conclusion  is  mentally  impossible. 
But  for  the  propositions  of  Ethics  and  Jurisprudence  there  are 
arguments  for  the  affirmative  and  for  the  negative.  We  con- 
sider what  ought  to  be,  and  thus,  what  may  be,  or  may  not 
be.  Tlie  contrary  to  any  conclusion  is  mentally  possible.  Is 
the  accused  guilty  or  not  guilty  ?  Is  the  evidence  satisfactory 
or  not  ?  Should  privateering  be  or  not  be  abolished  ?  Has  or 
has  not  the  National  Government  of  the  United  States  con- 
stitutional power  to  make  internal  improvements  ?  May  we 
or  may  we  not  utter  a  falsehood  to  save  life,  or  to  secure  an 

*  Inartificial  and  artificial  proofs  among  the  ancients. 


THE   FOURTH   RULE. 


27 


msane  person?  These  are  examples  of  legal  and  ethical 
questions.  They  have  two  sides.*  It  is  evident  that  he  who 
views  the  arguments  on  one  part  only,  does  not  give  the  sub- 
ject  a  fair  and  full  consideration.  AcGordi7igly,  the  habit 
of  mind  required  is  that  of  estimating  completely  all  the 
reasons  on  each  side  of  every  question,  and  determining  ly 
sound  judgment  in  which  part  is  the  preponderance.  This 
is  the  judicial  habit  of  mind.  On  some  public  buildings  you 
may  have  seen  the  statue  of  Justice  with  the  balances  in  her 
hand.  In  that  image  is  embodied  the  mental  disposition 
which  you  need  for  moral  and  legal  studies.  Ever  carry  the 
balances.  Give  each  part  what  belongs  to  it.  Then  estimate 
which  side  has  most  weight. 

The  neglect  of  this  rule  is  a  common  and  fatal  obstacle  to 
sound  judgment  in  these  subjects.  This  obstacle  attends  all 
minds  which  are  not  moderately,  but  immoderately  and  ex- 
clusively, metaphysical  or  mathematicaLf  Accustomed  to 
necessary  questions  and  scientific  demonstrations,  they  expect 
to  find  the  same  in  subjects  where  they  cannot  exist.  But 
the  kind  of  reasoning  used,  must  le  ever  adapted  to  the  mat- 
ter  reasoned  upon.  Demonstrative  reasoning  belongs  to  neces- 
sary propositions,  is  there  in  its  place,  and  there  indispensable. 
In  these  subjects,  it  is  out  of  place.  It  is  not,  according  to 
a  very  common  prejudice,  of  any  more  inherent  value  than 
probable  reasoning.  Its  whole  value  consists  in  its  primitive 
conformity  to  the  nature  of  things.     Without  that,  it  would 

*  My  conception  of  the  perfect  arrangement  of  a  work  on  these  subjects  would 
be  the  foUowing:  Every  proposition  is  to  be  put  as  a  question.  Then  aU  the 
arguments  in  the  negative  are  to  be  stated  and  numbered  as  objections.  The 
affirmative  is  then  to  be  supported  first  by  authority,  and  next  by  reason.  The 
reasons  are  then  to  be  applied  to  the  objections  one  by  one.  Such  a  work 
would  be  satisfactory  and  instructive,  but  too  voluminous  for  a  limited  course  o:' 
instruction. 

t  This  obstacle  can  be  removed  only  by  teaching  the  common  rules  of  all 
reasoning,  which  is  the  office  of  Logic.  Logic  cannot  be  safely  omitted  from 
any  course  of  education,  and  especially  not,  where  the  course  is  largely  demon- 
strative. 


1 

i 


28 


FIFTH   RULE  :   MODEEATION. 


1 


be  worthless,  except  as  a  mental  discipline.  Probable  reason- 
ing has  also  conformity  to  the  nature  of  things.  Each  kind  of 
reasoning,  then,  is  good  in  its  own  sphere,  defective  in  results  out 
of  its  sphere.  Of  the  two  kinds  of  men  unfitted  for  sound  judg- 
ment, as  lawyers,  legislators,  statesmen,  moralists,  the  metaphysi- 
cians* are  more  defective  than  mathematicians.  Both  look  to 
one  side  of  a  question,  and  simply  demand  unbroken  links  be- 
tween the  premisses  and  the  conclusions.  The  mathematician, 
however,  supposes  an  original  conformity  between  his  conceived 
premisses  and  external  facts  in  nature.  But  the  metaphysician 
asks  for  no  such  conformity,  but  only  that  his  conceived  pre- 
misses shall  receive  assent  from  himself  and  others.  He  then 
deduces  his  conclusions,  and  despises  facts. 

Such  is  the  necessity  for  tliis  rule. 

The  rule  belongs,  as  you  observe,  to  the  middle  term,  to  the 
reasons  for  or  against  the  proposition. 

5.  Prefer  opinions  which  are  moderate  and  practical. 

This  applies  the  general  habit  of  Proportion,  last  of  the 
previous  series. 

This  rule  results  from  the  nature  of  moral  and  legal  con- 
ditions. Both  Moral  and  Legal  Sciences  are  limited  as  to  the 
qualities  of  which  they  treat,  and  as  to  the  materials  with 
which  they  work ;  and  these  limitations  form  the  ever-during 
conditions  for  those  sciences.  The  Qualities,  Moral  and  Legal, 
of  which  they  treat — the  virtuous,  the  just,  the  useful,  all  of 
them  forms  of  good — have  this  characteristic,  that  they  cannot 
be  earned  to  excess  without  producing  the  contrary  qualities, 
the  vicious,  the  unjust,  the  hurtful ;  all  of  them  forms  of  evil. 
Proportion  is  their  life.  It  is  by  moderation  that  they  live, 
move,  and  have  their  being.  Hence  comes  the  first  part  of 
the  rule,  for  opinions  that  are  moderate.  In  Ethics,  is  not 
courage  between  rashness  and  cowardice?  In  the  laws  of 
penal  justice,  if  we  multiply  the  death-penalties  for  crime, 
what  can  we  find  but  the  experience  of  Athens  under  the  laws 

♦  An  example  is  Locke,  writing  on  Government,  or  drawing  up  a  constitution 
for  a  colonj. 


BE  MODERATE  I   BE   PEACTICAL. 


29 


of  Draco,  and  of  England  when  her  code  was  far  too  san- 
guinary !  If  we  aboHsh  the  death  penalty,  murders  abound. 
In  Political  Science,  if  we  give  too  much  power  to  the  many, 
we  have  one  kind  of  evils ;  if  too  much  to  the  few,  another ;  if 
too  much  to  one,  another.  Government  must,  therefore,  be  made 
by  the  tempering,  proportioning,  balancing  of  all.  So  is  Propor- 
tion  demanded.  It  is  with  Moral  and  Legal  qualities  as  with  the 
nose  of  the  Grecian  statue.  Deviate  from  the  Hue  by  exces- 
sive projection  into  the  aquiline,  or  by  excessive  depression 
into  the  upturned,  and  there  is  deformity.*  You  see,  then, 
why  the  intellectual  habit  of  Moderation  must  be  carried  by 
you  into  these  subjects.  Your  minds  must  listen  to  Ethics 
and  Jurisprudence  with  a  musical  ear,  conscious  ever  that 
disproportion  is  discord. 

The  materials  with  which  Ethics  and  Jurisprudence  do 
their  work,  are,  as  before  shown,  imperfect.  Moral,  legal, 
political  conceptions,  beautiful  in  idea,  cannot  be  fully 
realized  because  of  the  imperfection  of  the  materials.  In 
Geometry,  as  we  saw  before,  the  real  and  the  ideal  correspond. 
But,  in  these  subjects,  the  real  is  not  equal  to  the  ideal,  and 
cannot  be.  What  is,  in  Kature,  agrees  with  our  thought  of 
what  must  be ;  but  what  is  done  in  Morals  or  Law  does  not 
agree  perfectly  with  our  idea  of  what  ought  to  be.  We  must, 
then,  and  especially  in  legal  matters,  be  satisfied  with  what  is 
practical,  and  never  sacrifice  it  for  what  is  chimerical. 

The  effects  from  the  neglect  of  this  latter  rule  are  evils  of 
fearful  magnitude.  It  has  been  only  by  the  sturdy  good  sense 
of  the  English  people,  making  them  moderate  and  practical, 
that  they  have  preserved  their  Constitution  and  Laws.  In 
Prance,  the  people  have  had  the  most  destructive  political 
changes,  by  seeking  for  a  chimerical  simplicity,  and  a  logical 
sequence  knowu  only  to  the  abstract  sciences,  and  impossible 
beyond  the  sphere  of  pure  speculation.  Napoleon,  on  a 
memorable  occasion,  traced  the  political  evils  of  France  to 

*  Aristotle  use3  this  illustration,  though  not  precisely  in  this  form. 


30 


NAPOLEON    ON    PKACTICAL   WISDOM. 


■■■  I 


these  causes.     After  the  Eussian  campaign,  he  thus  spoke  to 
the  Council  of  State  : 

"  CoNSEiLLERS  d'Etat  i  *  *  *  C'est  a  I'ideologie,  a  cette 
tenobreuse  metaphjsique,  qui,  en  recherchant  avec  subtilite  les 
causes  premieres,  vent  sur  les  bases  fonder  la  legislation  des 
peuples,  an  lieu  d'approprier  les  lois  a  la  connaissance  du  coeur 
humain,  et  aux  lemons  de  Thistoire,  qu'il  faut  attribuer  tons 
les  malheurs  qu'a  eprouves  notre  belle  France. 

"  Ces  erreurs  devaient  et  ont  effectivement  amene  le  regime 
des  hommes  de  sang.  En  effet,  qui  a  proclame  le  principe 
d'insurrection  comme  un  devoir  ?  qui  a  adule  le  peuple  en  le 
proclaraant  a  une  souverainete  qu'il  etait  incapable  d'exercer  ? 
qui  a  detruit  la  saintete  et  le  respect  des  lois,  en  les  faisant 
dependre,  non  des  principes  sacres  de  la  justice,  de  la  nature 
des  choses,  et  de  la  justice  civile,  mais  seulement  de  la  vo- 
lonte  d'une  assemblee  composee  d'hommes  et  rangers  a  la 
connaissance  des  lois  civiles,  criminelles,  administratives, 
politiques,  et  militaires?  Lorsque  on  est  appele  a  regenerer 
un  etat,  ce  sont  des  principes  constamment  opposes  qu'il  faut 
suivre.  L'histoire  peint  le  coeur  humain  ;  c'est  dans  Thistoire 
qu'il  faut  chercher  les  avantages  et  les  inconvenients  des 
difforentes  legislations.  Yoila  les  principes  que  le  conseil  d'un 
grand  empire  ne  doit  jamais  perdre  de  vue." 


Tliis  final  rule  is,  as  you  observe,  universal.  It  attends  con- 
ception of  the  quality,  observation  of  the  case,  estimate  by 
sentiment,  judgment  by  reasoning.  For  all  to  be  correct,  there 
must  be  Proportion,  and  for  this  proportion  we  must  be  ever 
moderate,  ever  practical ;  excessive  and  chimerical  in  nothing. 
And  by  this  last  rule  you  will  counterbalance  your  ideal  con- 
ception, and  keep  it,  too,  from  disproportion.  You  will  set 
what  can  be  against  that  which  you  desire  as  what  ought  to 
be.  If  we  are  wholly  ideal,  we  shall  ever  destroy.  But  if  we 
have  no  idea  of  improvements,  we  will  never  create.  By  con- 
ception in  excess,  we  are  theorists,  and  not  practical  men. 


IMPORTANCE  OF  THESE  RULES. 


31 


These  are  the  rules  which  indicate  the  habits  of  mind  by 
which  you  can  most  pleasantly  and  profitably  study  these  sub- 
jects now  awaiting  us.  The  most  injurious  effects  follow  from 
neglect  of  them.  Imagine  the  contrasts.  Suppose  you  to  have 
no  conception  of  the  high  purposes  of  Morals  and  Laws ;  or  that 
you  do  not  study  your  cases ;  or  that  you  support  propositions 
contrary  to  every  man's  native  sentiments  of  right ;  or  that 
you  argue  for  one  side  only,  in  all  questions  of  duty  for  self,  or 
of  justice  for  others;  or  that  you  rush  into  extreme  and  im- 
practicable opinions.  It  is  certain  that,  with  such  habits  of 
mind,  you  would  not  be  one  of  sound  ethical,  legal,  and  politi- 
cal judgment,  nor  a  useful  member  either  of  a  military  court 
or  a  military  council.  I  say  a  military  council,  for  there,  too, 
like  habits  must  be  exercised,  and  both  sides  of  every  question 
fully  balanced. 

You  may  thus  estimate  the  value  of  these  rules  and  the  soli- 
citude  felt  for  their  observance. 

With  these  you  will  join  those  other  habits  needed  in  studies 
of  every  kind.  You  will  join  Attention  with  Eeflection.  You 
will  write  an  analysis  of  lessons. 

If  you  now  refer  back  to  the  table,  you  will  see  this  whole 
discussion  in  condensed  representation. 

Thus,  Gentlemen,  1  have  sought  to  teach  you  how  to  think 
on  these  subjects.  I  have  not  only  given  you  five  special 
rules  for  Ethics  and  Jurisprudence,  but  have  founded  them 
on  correspondent  habits  of  mind  demanded  by  that  group, 
wherein  the  leading  question  is— What  ought  to  be  ?  I  have 
done  all  this,  and  called  you  to  follow  me  over  the  whole 
garden  of  the  sciences,  because  of  my  deep  solicitude,  that  in 
Morals,  Jurisprudence,  and  Political  Science,  you  should  think 
soundly  and  well.  I  feel  this  the  more  deeply,  when  I  see  rash 
speculations  and  metaphysical  abstractions  filling  the  place  of 
common  sense.  Again,  Gentlemen,  trace  the  words  of  Na- 
poleon, and  estimate  the  value  of  Practical  Wisdom. 


COM:^rON   PKIKCIPLKS   OF  ETHICS   AND  JURISPRUDENCE. 


33 


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LECTUEE  II 

COMMON  PRINCIPLES  OP  ETHICS  AND  JURISPRUDENCE. 

We  have  seen  the  mental  habits  required  by  the  subjects  of 
Ethics  and  Jurisprudence.  We  have  drawn  the  rules  of  thought 
from  the  nature  of  these  subjects,  and  from  their  position  in  a 
map  of  the  Sciences.  And,  on  my  part,  I  have  given  the  laws 
of  just  and  sound  thinking,  fur  this  province  of  the  intellectual 
globe,  witli  the  more  attentive  care,  and  the  more  deep  solici- 
tude^ because  the  neglect  of  them  is  so  common,  and  fraught,  in 
regard  to  these  very  subjects,  with  such  immense  evils  to  indi- 
viduals and  to  the  public. 

From  the  required  habits  of  thought  I  now  come  to  the 
common  principles  of  Ethics  and  Jurisprudence. 

You  will  see  at  once  that,  before  examining  Ethics  and  Juris- 
prudence, each  by  itself,  we  ought  to  consider  those  principles 
in  which  both  subjects  agree.  The  contrary  method,  that  of 
treating  one  without  relation  to  the  other,  that  of  neglecting 
their  common  foundations,  has  been  much  too  general,  and  has 
been  productive,  both  in  morals  and  in  laws,  of  injurious  con- 
sequences. The  subject,  accordingly,  to  which  you  are  now  in- 
vited, is  that  of  the  common  principles  of  Ethics  and  Juris- 
prudence. 

The  common  foundation  of  both  may  be  expressed  in  a  single 
word:  Law. 

Accordingly,  I  propose,  first  of  all,  the  most  simple  and 
general  conception  of  law  as  a  Rule,  Subsequently,  we  will 
consider  a  more  particular  definition  of  Law,  both  from  the 
word  and  from  the  thincr. 

I  begin  with  the  simple  and  general  conception  of  Law  as 
a  Eule.  Under  this  head,  I  propose  to  you  a  series  of  defini- 
tions and  propositions,  all  designed  to  give  you  those  funda- 


1i 


u 


DEFmrncNs:  of  rule;  of  ordee. 


mental  conceptions  bj  wliich  you  may  clearly  understand 
moral,  legal,  and  political  principles.  The  statements  will 
demand  memory.  The  explanations  will  require  but  your 
passing  attention.  You  will,  of  course,  at  first,  generalize, 
because  we  are  seeking  not  for  principles  belonging  to  this  or 
that  law,  but  for  those  common  to  all  law.  "Wisely  to  gener- 
alize is  ever  to  simplify.  The  contrary  and  vulgar  prejudice 
belongs  only  to  the  weak  or  uneducated  mind. 

Taking  Law,  then,  as  a  rule,  we  need  to  understand  the  terras 
Kule,  Order,  System,  Organization,  Polity,  successively,  and 
thus  to  open  the  way  for  propositions  which  regard  Law. 

1.  A  Kule  and  a  Class  airree  in  this,  that  both  are  modes  of 
order  for  giving  general  heads  to  particulars.  Their  distinc- 
tion is,  that  the  word,  rule,  is  rather  applied  to  actions,  and 
class,  to  things. 

Thus,  in  regulating  the  individual  actions  of  the  da}',  one 
would  naturallv  brincr  them  under  rules  for  action.  But  that 
pebble,  picked  up  in  the  path,  is  spoken  of  as  in  the  class, 
stone,  and  the  latter  as  among  minerals.  The  rose,  plucked 
from  its  stem,  is  in  the  class  of  flowers,  and  these  in  the  class 
of  plants.  This  book  is  in  the  scientific,  and  that,  in  the  liter- 
ary class.  Rules,  then,  are  for  particulars  to  be  done ;  classes, 
for  particulars  to  be  known  and  named.  Rules  record  modes 
of  action :  classes,  modes  of  existence.  But  the  point  to  be 
impressed,  so  that  you  may  have  no  misconceptions,  is,  that 
both  rule  and  class  give  order  to  particulars.     Accordingly, 

A  Rule  is  a  head  under  w^hich  Particular  Actions  may  be 
REDUCED :  A  Class  is  a  head  under  which  particular  things  may 
be  reduced. 

2.  Order  is  the  Process  of  reducing  Particulars  under 
Generals. 

S  The  result  of  this  reduction  is  called  a  System.  The  word 
System  {(yw,  larTjfu)  means  standing  together.  Things,  in 
classes,  stand  together  in  a  system.  Actions,  under  rules, 
stand  together  in  a  system.  A  System  of  Zoology  is  an  exam* 
pie  of  one ;  a  System  of  Tactics,  of  the  other.    Hence, 


of  system;  of  polity. 


55 


A  System  is  a  Combination  of  Parts  in  one  Whole  bt 
Order. 

4.  But,  instead  of  regarding  things  alone,  or  actions  alone, 
we  may  put  both  ideas  -together,  and  consider  things  as  put 
together  purposely  for  actions.  In  this  case,  we  use  the  word, 
Organization.  The  medical  student  is  dissecting  a  dead  body 
on  the  marble.  He  is  tracing,  part  by  part,  the  organization 
of  the  human  frame,  as  made  for  the  actions  of  life.  Tliose 
raw  recruits,  those  scattered  fugitives  assembling  on  the  plain, 
are  to  be  made  into  an  army,  and  that  army  to  be  put  into  the 
best  condition  for  winning  victories.  They  are  to  be  organized. 
Accordingly, 

Organization  is  a  System  arranged  for  Action. 
The  word  retains  its  primeval  sense,  being  from  tpyov,  a  work; 
it  is  the  order  of  things  for  their  working. 

5.  There  is  a  general  term  which  includes  both  the  system 
of  organization  and  the  system  of  rules.     It  is  Polity. 

Polity  is  order  in  any  system,  both  for  organization  and  action. 

A  good  example  is  from  the  first  idea  of  the  word  itself.  It 
is  from  the  same  source  with  our  familiar  words,  political,  poli- 
tics, policy,  and  the  like.  It  is  from  -rrolLg  {polls),  a  city. 
Cities  were  considered  in  Greece  as  sovereign  States.  The 
polity  of  Athens  would  include  both  the  political  organization 
of  Athens,  which  we  would  now  name  her  constitution,  and 
the  whole  body  of  Athenian  laws,  as  the  civil,  criminal,  admin- 
istrative, military.  The  polity  of  England  includes  the  Eng- 
lish Constitution,  and  the  whole  code  of  laws,  common  and 
statutory,  with  all  their  divisions.  Military  polity  compre- 
hends both  the  military  organization,  and  the  rules,  customs, 
and  regulations  for  the  service.  Ecclesiastical  polity  embraces 
both  the  constitution  of  the  ecclesiastical  body,  or  bodies,  and 
all  their  rules  and  customs.  Such  is  Polity,  as  the  term  is  here 
used.  The  terra  raay  be  extended  just  so  far  as  we  choose  to 
apply  it,  even  to  the  universe  and  its  Author.     Hence, 

Polity  is  Order  in  any  System,  both  for  Organization 
AND  Action. 


36 


LAW,   A   BRANCH   OF  POUTT. 


6.  "We  now  want  a  term  for  the  heads  of  actions  which  we 
named  rules.     That  term  is  Law. 

Law,  in  its  most  compreliensive  sense,  is  a  rule  of  action.  It 
is  the  rule  which  is  observed,  or  ought  to  be  observed,  bj  what- 
ever acts,  bj  all  beings,  all  things,  natural  or  artificial,  to  which 
action  of  any  kind  can  belong.  Thus,  we  might  speak  of  the 
law  of  a  watch,  or  of  a  steam-engine,  meaning  thereby  the 
rule  for  its  movement.  "We  do  speak  of  the  laws  of  Astron- 
omy, the  laws  of  Optics,  the  laws  of  Acoustics,  meaning  spe- 
cially, rules  of  action,  of  movement,  for  heavenly  bodies,  for 
light,  for  sounds.  Human  actions  are  likewise  regulated.  Con- 
tracts must  be  fulfilleil.  Debts  must  be  paid,  the  public 
rule  prescribing  such  action  we  speak  of  as  the  Law.     Plence, 

Law  is  a  Branch  of  PoLrry,  including  Rules  for  Action. 

7.  Before  we  come  to  a  more  specific  view  of  Law,  you  will 
observe  its  relation  to  Polity  and  Organization.  Law  is  a 
branch  of  Polity.  Law  presupposes  Organization.  It  is  lim- 
ited by  that  previous  organization.  It  is  under  the  restraint 
of  that  system  of  Polity  whereof  it  is  a  part.  The  oversight 
of  this  plain  fact  has  caused,  and  must  ever  cause  obscurities 
and  errors. 

The  law  of  the  watch  is  evidently  limited  by  the  structure 
of  the  watch.  It  cannot  go  beyond  or  below  a  certain  rate  and 
extent  of  movement.  The  rule  of  movement  in  the  steam- 
engine  is  dependent  on  the  structure  of  the  macliine.  Certain 
rates  and  certain  motions  are  impossible  with  those  materials, 
that  force,  that  construction.  In  Nature  we  meet  the  same 
fact.  A  man  cannot  fly,  nor  pass  along  from  branch  to  branch, 
among  the  trees  of  a  forest.  Ilis  nature  is  not  that  of  the 
bird,  nor  of  the  squirrel.  The  movements  of  the  heavenly 
bodies  depend  on  their  nature,  and  those  of  the  universe  on  its 
materials  and  construction.  The  actions  of  God  Himself  are 
conformed  to  His  nature.  So  that  everywhere  we  see  that  in 
every  thing  its  law  is  limited  and  determined  by  its  nature. 
The  same  fact  is  found  in  all  public  regulations.  The  rules 
and  by-laws  of  the  smallest  corporation  are  limited  by  the 


INTELLIGENT   SUBJECTS   OF  LAW   ARE   PERSONS.  37 

charter  which  makes  it  a  body  corporate.  The  municipal  lawB 
of  any  country  are  limited  by  its  organic  law,  its  Constitution. 
Wherever,  then,  there  is  a  rule  for  action,  there  is  some  organic 
regulation  limiting  that  action.  Order,  directive  of  WiU^'first 
limits  and  then  guides  the  Will.  It  limits  by  constitutin'c. ;  it 
guides  by  Law.     Hence,  ^  ' 

Every  Law  is  Limited  by  that  System  of  Polfiy  whereof 
IT  is  a  Part,  and  by  the  Nature  of  the  Subject  to  which 
IT  IS  Applied. 

^  8.  The  rational  subjects  of  Law  are  persons,  collective  or  in- 
dividual. 

Wherever  there  is  intelligence  to  perceive  a  Law,  and  will  to 
follow  it  voluntarily,  there  is  a  personality.     A  nation  is  a 
moral  person  having  intelligence  and  will.     A  single  man  is  a 
moral   person   likewise,   having  intelligence   and   will.     The 
difl-erence  between  them  is,  that  the  nation  is  collective,  the 
single  man  individual.     It  is  highly  important  for  this  to  be 
understood:  that  in  Ethics  and  Jurisprudence  the  v^ovd perso7i 
does  not  necessarily  imply  an  individual  intelligent  being,  but 
means  equally  any  collections  of  such  beings  which  may  act 
with  one  thought  and  volition.     If  any  one  be  at  first  em- 
barrassed with  such  use  of  the  word  person,  he  may  employ  the 
word  personality.     All  minds  are  rational  subjects  of  Law,  and 
form  persons.     Matter  is  the  irrational  subject  of  Law.     Thus, 
The  Intelligent  Subjects  of  Law  are  Persons. 
9.  The  subjects  of  Law  are  subordinated   and  co-ordinated 
systems.      This   statement   includes   both   the   rational    and 
irrational  subjects  of  law. 

To  explain  this,  I  must  show  you— 1.  What  are  the  subjects 
of  Law ;  2.  That  these  form  systems,  to  each  of  which  its  own 
Law  is  adapted ;  3.  That  these  systems  exist  in  both  a  sub- 
ordinated and  co-ordinated  order. 

(1.)  The  subjects  of  Law  are  whatever  exists.     At  the  head, 
is  the  Creator.    Next  is  the  creation,  as  one  totality.     JSText  are 
the  parts  of  that  creation,  and  these  are  mind  and  matter.  . 
Created  minds,  apart  from  matter,  form  angelic  persons ;  for 


38 


SUBJECTS   OF  LAW   ARE   SYSTEMS. 


"He  maketli  His  angels,  spirits,^^  Such  minds  in  matter 
form  human  persons.  Matter,  apart  from  mind,  constitutes 
the  material  universe,  tlie  visible  "  cosmos."  These,  then,  are 
the  subjects  of  Law.  Thej  are,  the  Deity  ;  the  creation  as  one 
whole ;  angels  ;  men  ;  tlie  material  world. 

I  can  simplify  and  condense  the  next  statement,  if  you  will 
keep  in  mind  the  following  evident  facts.  Persons  are  individual 
or  collective.  Persons,  whether  individual  or  collective,  are 
essentially  self  determining,  self-moving.  Whether  Law  shall 
come  to  them  from  without  them,  or  from  within  them,  they 
accept  it  intelligently  tlirough  reason,  and  voluntarily  through 
will.  This  is  the  case  with  all  minds,  from  the  Eternal  down 
to  man.  Matter,  on  the  contrary,  is  and  must  be  moved  by  a 
power  external  to  itself  While  mind  accepts  its  laws  with 
liberty,  and  executes  them  by  self-born  activity,  matter  receives 
its  laws  under  necessity,  and  obeys  them  in  entire  passivity. 
These  facts  being  in  your  thoughts,  you  are  prepared  for  the 
next  statement. 

(2.)  Tlie  subjects  of  Law  are  systems:  I  will  here,  for  clear- 
ness, follow  the  reversed  order  of  those  subjects,  and  pass  from 
the  material  world  upward  to  its  Maker.  The  visible  universe 
is  a  sysUm^  proceeding  from  the  most  dense  materials  to  the 
most  rare,  and  thence  to  primary  forces  emanating  from  the 
first-moving  mind.  Man,  the  individual  person,  is  a  system. 
He  is  an  organized  system,  whose  parts  are  mind  and  body, 
with  their  capacities  active  and  passive,  ordained,  some  of 
them,  to  be  ruling,  seme  to  be  ruled.  Men,  collectively,  form 
a  system.  A  nation  is  at  once  a  personality  and  a  system. 
At  the  summit  is  the  organization  of  the  whole  body  politic  by 
its  organic  law.  Beneath  that  primary  association  are  sub- 
ordinate associations,  runninii:  down  to  singcle  families:  and 
beneath  that  organic  regulation  are  subordinate  regulations, 
extending  down  to  the  acts  of  individuals.  A  nation,  then, 
forms  a  system  in  the  subordinated  order;  and  a  group  of 
nations,  under  International  Law,  a  system  co-ordinated.  The 
mind  of  a  single  angel  is  a  system  of  high  mental  powers. 


SYSTEMS   ARE   SUBORDINATED   AND   CO-ORDINATED.  39 

Those  beings  collectively  form  a  system;  "the  celestial  Hie- 
rarchy;" the  spiritual  and  eternal  Kingdom  of  God.  The 
creation,  visible  and  invisible,  is  a  system  of  mind  and  of 
matter,  proceeding  wholly,  both  in  substance  and  in  form, 
from  the  Creator,  and  ascending  nearer  and  yet  more  near  to 
the  likeness  of  Himself,  as  the  gradations  rise  from  the  lowest 
matter  to  the  highest  created  mind.  The  dread  and  boundless 
Maker  is  a  system  of  transcendent  powers.  In  His  nature,  He 
is  a  mind;  infinite;  underived;  possessing  reason,  will,  and 
all  conceivable  attributes  of  perfection.  To  us,  mentally  (that 
is,  to  us  seeking  to  make  our  thoughts  the  mirror  of  these 
facts),  His  nature  is  a  system,  composed  of  attributes  and  of 
powers  which  we  combine  in  our  conception  of  One  First 
Being.     Thus  are  these  subjects,  all  of  them,  systems. 

Also,  to  each  of  these  systems  is  its  own  law  adapted.  The 
law  of  every  system  is  and  must  be  adapted  to  the  nature  of 
that  system.  The  laws  of  the  physical  universe  are  fitted  to 
the  conditions  of  matter,  and  its  gradations  as  these  are  less 
and  less  dense.  The  law  for  the  individual  man  is  adapted  to 
his  nature,  as  free  and  accountable.  The  laws  for  nations, 
organic,  international,  municipal,  are  adapted  to  the  nature  of 
men  as  beings  who  cannot  exist  apart  from  some  body  politic ; 
who  are  made,  as  much  as  bees  are,  for  united  life.  It  is  so 
with  all  the  other  subjects.  The  law  of  the  Deity,  for  Him- 
self, is  that  which  He  approves  as  conformed  to  His  own 
nature.  The  subjects  of  Law  are,  therefore,  systems,  and  the 
systems  have  Laws  adapted  to  their  natures. 

(3.)  T/iese  systems  are  in  the  subordinated  and  co-ordinated 
order.  Of  these,  some  are  subordinated.  Creation  is  beneath 
the  Creator,  matter  below  mind,  the  ftimily  subordinate  to  the 
State.  And  in  the  human  person,  the  body  is  subordinated  to 
the  mind,  body  and  mind  to  will,  will  to  reason,  reason  to  con- 
science ;  while  conscience,  like  the  most  ethereal  matter  of  the 
visible  universe,  is  the  direct  recipient  of  the  laws,  will,  and  influ* 
ence  of  the  Deity.  Some  systems  arc  co-ordinated.  The  con- 
stellations above  the  earth,  and  nations  on  it,  are  examples. 


ji 


I 


rl 


40 


WnERE   LAW   IS,   THEEE   IS   LIBEETY. 


International  law  regards  nations  as  equal  in  respect  to  each 
other.  So  within  a  nation,  municipal  bodies,  families,  individu- 
als, are  equal  before  the  law  in  respect  to  each  other.     Hence, 

The  Subjects  of  Law  are  Suboedixated  and  Co-okdlnated 
Systems. 

10.  It  results  from  this,  that  wherev^er  there  is  Law  there 
must  be  Liberty. 

By  Liberty  I  mean  tliat,  in  every  subject  to  which  a  law  is 
applied,  all  the  actions  of  that  subject  are  not  prescribed  by  the 
law  so  applied.  These  excepted  actions  form  a  liberty  as  re- 
gards that  law.     The  term,  as  here  used,  is,  therefore,  relative. 

Observation  presents  this  fact  to  us  universally.  "VVe  see  it 
in  the  most  common  things.  In  driving  or  riding  a  horse,  while 
giving  law  by  the  rein,  we  yet  allow  freedom,  by  leaving  the 
animal  in  some  particulars  to  his  spontaneous  movements. 
Children  are  under  family  rules  at  home,  and  under  regula- 
tions at  school,  but  in  their  sports  and  in  trifling  matters  have 
liberty.  Laborers  in  a  field  or  factory,  have  their  directions 
and  regulations.  But  these  are  limited  to  connection  with  the 
work.  Mature  and  reason  thus  lead  men  in  common  actions 
to  have  Law  for  essentials,  and  Liberty  in  non-essentials.  We 
all  know  and  instinctively  feel  that  we  could  not  rationally 
follow  any  other  course. 

We  see  it  in  human  laws.  A  corporation,  though  bound  by 
its  charter,  is  yet  free  to  make  any  regulations  and  by-laws 
not  contradictory  uf  its  organic  law.  A  village,  a  city,  a 
county  is  free  to  make  its  local  regulations,  provided  they  do 
not  annul  the  law  or  constitution  of  the  State  or  of  the  United 
States.  A  State  is  free  to  make  its  own  constitution  and  laws, 
provided  they  do  not  contravene  those  of  the  !N"ational  Govern- 
ment. In  the  most  despotic  countries,  the  subjects  are  left  free 
in  numerous  actions  which  authority  has  not  the  wish,  or  not 
the  power,  to  regulate.  In  an  army,  each  subordinate  officer 
or  soldier  has  liberty  or  discretion  in  some  particulars.  The 
same  principle  is  seen  in  all  ecclesiastical  polity.  In  all 
Government,  civil,  military,  ecclesiastical,  the  rule  which  men 


law  in  essentials;  liberty  in  non-essentials.         41 

follow  till  their  practical  reason  is  clouded,  is  this :  "Inessen- 
tials, Law;  and  in  non-essentials,  Liberty."  The  practical 
races,  Koman,  English,  Eussian,  American,  have  instinctively 
granted  this  local  liberty,  and  thus  formed  vast  political 
societies.  The  theorizing  races,  the  Grecian,  the  Celtic,  have 
as  instinctively  refused  it,  and  thus  produced  tyranny  or 
division. 

As  in  Government,  so*  it  is  in  the  administration  of  justice. 
The  courts  of  law  punish  wrongs  committed  by  man  on  man, 
but  not  the  offences  of  a  man  against  his  own  conscience. 

If  from  human  Society  you  pass  to  Xature,  the  same  fact  is 
seen.  Created  mind  is  distinguished  from  matter  by  freedom 
of  will.  You  can  choose  wrong  or  right,  evil  or  good.  You 
are  under  law,  but  it  is  a  law  of  liberty,  law  accepted  by 
volition.  The  Uncreated  Mind  is  sovereign  and  free.  His  law 
for  Himself  is  to  conform  to  His  own  nature,  but  under  that 
law.  He  is  sovereign  and  free  in  His  actions.  Observation 
thus  shows  the  fact  that  Liberty  accompanies  Law. 

Eeason  shows  why  it  must  be  so.  It  results  from  the  fact 
that  the  subjects  of  Law  are  subordinated  and  co-ordinated 
systems.  In  all  co-ordinated  systems  there  must  be  liberty  in 
each  as  compared  with  the  others.  For  example,  a  nation,  aa 
compared  with  others,  or  within  a  nation  one  municipal  body, 
one  family,  one  individual,  is  free  from  the  interference  of 
equals.  In  subordinated  systems,  what  is  inferior  is  not  only 
subject  to  the  next  superior,  but  to  higher  superiors,  and  there 
must  be  liberty  for  obeying  the  higher.  Thus  a  soldier  re- 
ceives command  from  his  oliicer,  but  a  command  from  the 
superior  of  that  officer  frees  the  soldier  from  obedience  to  that 
tirst  command.  This  is  universally  the  case  in  all  kinds  of 
subordination  under  Law. 

And  hence  the  maxim  that  Law  is  accompanied  with  Liberty 
extends  even  to  matter.  The  material  universe  presents  sub- 
ordinated systems,  as  well  as  co-ordinated.  Thus,  the  ocean  is 
under  the  laws  of  fluids,  but  these  are  modified  by  the  sun, 
moon,  and  atmosphere.      The  atmosphere  has  its  laws,  but 


rl 


I  4f 

1:1 


I 


42 


LAW   FOR   REASONABLE   BEINGS   HAS   EQUITY. 


these  are  modified  by  the  ethereal  fluid  which  enfolds  and  per. 
vades  all  things.  No  one  ever  attempted  to  tune,  by  theory, 
a  musical  instrument  of  several  octaves,  without  finding  the 
evidence  of  this  higher  interference  at  the  end  of  his  work. 
His  theory  was  by  atmospheric,  but  the  instrument  has  felt 
ethereal  undulations. 

You  will  see  by  observation  and  reflection  that  into  a  uni- 
verse like  this,  both  necessary  and  contingent  causes  must 
enter ;  both  Law  and  Liberty.  It  is  only  metaphysicians  wiio 
attempt  to  spin  the  world  from  tlieir  brains,  as  the  spider  his 
web,  that  contemplate  necessity  alone.*  Whoever  begins  with 
tlie  world  as  it  stands,  and  conforms  his  thought  to  it,  always 
considers  necessity  and  contingency.  Law  and  Liberty,  as  going 
forth  together  from  the  beginning  of  the  world.     Accordingly, 

Wherever  there  is  Law  there  must  be  Liberty. 

11.  Wherever  there  is  Law  for  reasonable  beings,  there  must 

be  Equity. 

This  results  from  the  last.  As  every  law  leaves  liberty  in 
some  particulars,  tliere  must  be  among  rational  beings  a 
rational  use  of  that  liberty,  and  this  is  Equity.  A  law  speaks 
in  general.  It  is,  as  was  shown,  a  head  for  particulars.  No 
law,  as  literally  expressed,  includes  every  case  that  may  arise 
under  it.  A  piece  of  land  with  a  house,  for  example,  is  under 
mortgage,  and  the  money  due  upon  it  has  not  been  paid  by  the 
prescribed  day  and  hour.  By  the  literal  reading  of  the  law 
and  the  bond,  the  property  passes  to  the  creditor  and  can  be 
instantly  sold.  But  many  cases  arise  where  this  would  be 
unjust,  and  be  directly  against  the  intention  of  the  law.  Then 
arises  equity  of  redemption,  by  which  the  debtor  is  allowed  to 
redeem  that  estate  through  equitable  conditions.  Other  exam- 
ples may  suggest  themselves.     I  will  present  but  two.     The 

♦  The  reasoning  of  the  fatalist  is,  that  it  is  derogatory  to  the  Creator  not  to 
suppose  necessity.  He  can  and  ought  to  foreordain  every  thing;  therefore,  He 
has.  The  answer  is :  if  He  have  tlie  right  and  power  to  necessitate,  He  has  equally 
the  right  and  power  to  abstam  from  necessitating.  Every  moral  act  of  the  human 
mmd  shows  that  for  it,  at  least,  He  has  chosen  the  latter. 


GENERAL   NATURE  OF   EQUITY 


43 


rule  is  to  give  another  what  belongs  to  him.  Here  comes 
one  intent  on  murder,  and  claims  a  sword  he  has  left  with 
me.  Another,  known  to  me  to  be  plotting  rebellion,  claims 
a  sum  of  money  likewise  left.  In  both  cases  I  must  break 
the  letter  of  the  rule,  and  withhold  the  property.  If  I  do 
not,  I  am  accessory  to  murder,  in  the  one  case,  and  to 
rebellion  in  the  other.  This  principle  extends  through  all 
Jurisprudence.  It  also  exists  in  Ethics.  Under  every  moral 
rule,  literally  expressed,  cases  will  arise,  where  the  intention 
of  the  maker  of  the  rule  is  to  be  considered,  rather  than  the 
letter  of  the  precept.  Thus,  the  letter  of  the  Divine  law  is, 
"  In  it  {'  the  Sabbath-day')  thou  shalt  do  no  manner  of  work." 
But  works  of  necessity  and  charity  are  allowable  on  that  day. 
They  literally  break  the  precept,  which  says  "  no  manner  of 
work."  They  form  the  equity  of  this  Divine  law,  and  this 
equity  is  sanctioned  by  the  founder  of  Christianity. 

This  explanation  will  not  only  assist  you  in  Ethics,  by  calling 
you  to  reason  and  good  sense  in  applying  all  moral  rules,  but 
in  Jurisprudence,  also.  In  that  you  will  want  to  understand 
what  is  meant  by  equity.  The  Constitution  of  the  United 
States,  for  example,  will  speak  of  "  cases  arising  in  law  and 
equity." 

You  will  observe,  then,  that  in  every  country,  there  must 
grow  np  a  body  of  equity  by  the  side  of  its  body  of  laws.  It 
was  so  in  Greece  and  Eome.  It  is  so  in  France,  England,  and 
the  United  States.  It  ever  has  been,  and  ever  must  be  so.  Some 
lawyers  in  each  country,  seeing  the  decisions  in  equity,  form  a 
code  of  rules,  which  restricts  the  decision  of  each  judge,  give 
a  technical  and  limited  sense  to  the  term  equity,  and  forget  its 
primitive  sense  and  origin.  To  guard  you  against  misconcep- 
tion, I  must  discriminate  the  different  senses  of  the  word. 

Equity  has,  like  many  words,  primary,  secondary,  and  ter- 
tiary meanings,  the  latter  two  being  natural  derivatives  from 
the  former. 

Equity,  in  its  primary  sense,  is  the  sj)irit  of  Law ^  since  all 
law  aims  to  be  equitable.     The  very  word  shows  it  to  mean 


11 


!t 


k 


44 


DIFFERENT   SENSES   OF   "  EQUITY." 


equality,  and  equality  (as  was  shown  in  Practical  Etliics)  ia 
the  idea,  the  very  soul  of  all  Justice.  Equity,  therefore,  is  a 
division  of  Justice.  In  this  primary  sense,  the  signification  is 
single,  not  relative :  "  He  will  judge  the  people  with  eq^iity:' 

In  its  secondary  sense,  Equity  is  a  relative  term.     It  is  the 
correction  of  law.     A  body  of  laws  is  supposed  to  have  been 
formed.      Their  literal  application  to   particulars  proves,  in 
some  cases,  inequitable,  and  thus  contrary  to  the  spirit  of  the 
law  and  the  intention  of  the  legislator.     A  defect  thus  arises, 
not  necessarily  from  deficiency  in  the  law-maker,  or  in  the  law, 
both  which  may  be  the  best  of  their  kind.     It  arises  from  defi- 
ciency in  the  nature  of  things,  their  particulars  being  innumer- 
able,- and  from  deficiency  in  the  nature  of  language,  whose 
general  terms  will  not  express  all  particulars.     This  defect 
needs  to  be  rectified.*    If  the  legislator  could  reappear,  and, 
in  view  of  the  new  case,  make  a  law  for  it,  the  rectification 
would  be  complete.     In   his    absence,  the   nearest  possible 
approach  to  his  rectification  is  made  by  supposing  him  present, 
by  entering  into  his  intentions,  and  using  the  reason  which  is 
common  to  us  and  him.    Tlien  arises  Equity  in  its  secondary 
gense,— -as  the  rectification  of  law,  f     Grotius,  as  quoted  by 
Blackstone,  defines  it,    "The  correction  of  that  wherein  the 
law  (by  reason  of  its  universality)  is  deficient.''^    I  only  object 
in  this  to  the  word  "  deficient:'     The  law,  referred  to  its  real 
home  and  dwelling-place,  which,  as  we  shall  subsequently  see,  is 
the  mind  of  the  legislator,  is  not  necessarily  deficient.     It  is 
rather  inapplicable. 

In  its  tertiary  sense.  Equity  is  the  body  of  decisions  and 
rules  formed  in  any  country  by  the  judges  and  courts,  whose 
office  is  to  rectify  the  operation  of  the  prominent  body  of  laws 
belonging  to  that  country,  so  as,  by  Equity,  to  prevent  injus- 
tice.    Here,  too,  the  term  is  relative.     We  must  first  know 

♦  The  Greek  word  for  equity  has  this  secondary  sense.  It  is  the  yielding  of 
the  law  to  a  pressure :  Imenceia  (tTTt,  elkg),  to  yield). 

t  *E7ravdp0WjUa  vofiov Arist.,  Nic.  Eth.,  lib.  5,  c.  x. 

t  Blackstone.    Introduction  to  Commentaries. 


WHEEE   IS   LIBEKTYj   THERE   SHOULD  BE   LAW. 


45 


what  is  the  prominent  body  of  law  belonging  to  that  country. 
Then,  and  then  only,  have  we  a  key  to  its  Equity. 

Thus,  in  England  the  prominent  body  of  law  is  the  common 
and  the  statute :  the  common  law  "  whereof  the  memory  of 
man  runneth  not  to  the  contrary ;"  the  statute  law  by  acts  of 
Parliament.  The  courts  of  equity  in  England  are  relative  to 
this  English  law,  and,  in  that  relation  only,  are  courts  of  equity. 
These  courts  have  taken,  in  order  to  fulfil  their  relative  ofiice, 
not  the  individual  discretion  of  judges,  but  portions  of  the 
civil  (Eoman)  law,  and  of  the  canon  (Ecclesiastical)  law.  They 
are,  then,  bound  not  only  by  the  code  taken,  but  by  their  own 
decisions  made.  In  regard  to  these  rules  of  action,  they  are 
courts  of  law,  but,  in  regard  to  the  body  of  English  law,  they 
are  courts  of  equity. 

Such,  then,  are  the  three  senses  of  the  word  Equity — the  first 
primitive,  the  two  others  derivative ;  and  of  these  latter  two, 
both  of  them  relative,  the  one  general,  the  last  technical  and 
local.     Accordingly, 

TVhEREVER    THERE    IS    LaW    FOR    REASONABLE    BEINGS    THERE 

MUST  BE  Equity. 

12.  There  follows  now  a  still  more  general  maxim. 

Wherever  Liberty  is  exercised,  Law  must  be  accepted. 

You  will  keep  in  mind  that  the  term  Liberty,  as  here  used, 
is  relative.  It  is  relative  to  the  particular  law  for  any  system, 
and  expresses  the  simple  fact  that,  by  that  one  law,  all  the  sin- 
gle actions  of  that  system  are  not  regulated.  I  simply  mean 
by  the  maxim  just  announced,  tliat  these  excepted  actions 
must  be  brought  under  some  other  regulation.  Without  this, 
there  must  be  disorder  And  disorder  causes  evil.  To  be  reo-u- 
lated,  these  excepted  actions  must  be  guided  by  Reason,  human 
or  divine.  An  example  of  the  guidance  of  excepted  actions 
by  human  reason  we  have  just  had  under  Equity.  In  the  laws 
of  nature,  which,  as  we  shall  learn,  are  from  divine  reason,  we 
see  that  so  soon  as  a  substance  is  set  free  from  the  laws  of  one 
system,  it  comes  under  those  of  another.  That  gunpowder,  in 
grains,  is  under  the  laws  of  disintegrated  solids.     The  units 


t 


46 


LAW   IMPLIES   JURISDICTION. 


t! 


«1l 


press  together.  Apply  the  spark.  They  pass  from  the  laws 
for  solids,  under  those  for  aerials,  and  repel  each  other  irresisti- 
bly. And  so  in  spiritual  laws.  We  withdraw  ourselves  from 
the  directive  and  remedial  laws  of  God,  only  to  come  under 
those  that  are  penal.  And  so  it  is  in  human  political  laws. 
When  the  people  of  France,  in  their  first  Kevolution,  broke 
up  all  law  and  order  for  liberty,  what  did  they  find  but  the 
tyranny  of  public  passions  and  public  necessities  ?  They  found 
the  need  for  bread,  for  armies,  for  revenues,  for  private  morality, 
in  other  words,  for  law  and  order.  The  alternatives  were  sim- 
ply Anarchy  or  Order.  So  there  is  liberty  for  the  press,  there 
is  liberty  for  speech,  but  still  this  must  be  regulated,  or  there 
is  licentiousness,  demoralizing  the  individual  or  the  public 
heart.  It  belongs,  then,  to  all  Law,  as  existing  in  subordinated 
and  co-ordinated  systems,  that, 

WiiKREVER  Liberty  is  exercised.  Law  must  be  accefted. 
13.  Every  law  implies  jurisdiction.     Jurisdiction  is  the 
liinitatioii  of  a  law  to  its  proper  subjects. 

The  reason  is,  that  every  law  implies  a  subject. 
As  Law  is  a  branch  of  Polity,  every  law  must  have  its  own 
system  as  its  subject.  As  Law  is  a  rule  of  action,  every  law 
must  have  in  that  system  its  own  series  of  actions  as  its  proper 
subject.  The  limitation  of  any  law  to  the  subjects  belonging 
to  it  (the  system  and  the  actions)  is  its  Jurisdiction.  Thus, 
the  jurisdiction  of  a  father,  giving  law  to  his  family,  is  limited 
to  that  little  domestic  system,  and  to  the  actions  which  are 
under  his  control.  The  jurisdiction  of  conscience,  administer- 
ing ethical  law,  is  within  the  mind,  the  personal  system,  and 
extends  to  the  man's  voluntary  actions,  not  to  the  involuntary  ; 
to  his  own  actions,  and  not  to  those  of  other  men,  unless 
thi\v  are  under  his  natltority.  Miiiij*  juriBdiclions  aix)  lim- 
ited by  phuH,%  Thua,  the  jurisdiction  of  the  law«  of  a  city, 
couDty,  btiile,  territory,  proviDce,  oation,  i:*  limited  by  llio 
bovndaries  of  cacli.  8<hii6  jnrifidietions  are  limited  by 
perean«.  Thus,  the  ordinary  jnriwliction  of  military  law 
if  over  military  pei^8on$,  without  rc:ilnctiou  by  place.    Some 


MEANING   OF  JURISDICTION. 


47 


jurisdictions  are  limited  by  things.  Thus,  admiralty  law 
applies  to  things  used  in  navigation,  such  as  vessels,  but  not  to 
those  fixed  on  land,  as  houses.*  Most  jurisdictions  are  limited 
by  time.  Thus,  military  law  (except  in  specified  cases)  limits 
punishments  to  offences  committed  within  two  years.  Laws 
regarding  both  personal  and  real  property  have  statutes  of  lim- 
itation. All  jurisdictions  are  limited  by  the  kinds  of  actions 
regulated.  Thus,  criminal  hvw  is  for  criminal  actions,  and  no 
man  becomes  the  subject  of  that  kind  of  law  till  he  has  com- 
mitted  an  act  of  tlie  kind  called  crimes. 

Tlie  word  Jurisdiction  expresses  this  idea, — the  limitation 
of  a  law  to  its  proper  subjects.  The  word  is  from  jic-ris  and 
dtct'io.  It  is,  literally,  the  act  of  law-speaking.  It  is  the 
voice  of  a  law,  addressed  not  to  the  world  at  large,  but  to  and 
of  its  subjects.  As  all  speech  implies  a  speaker,  persons  spoken 
to,  and  things  or  persons  spoken  of,  so  is  it  with  the  voice  of 
law.  Law  speaks  to  definite  persons,  and  of  definite  persons 
and  things.  The  word  judge  has  nearly  the  same  elements. 
Tlie  term  judge  (Judex\  is  from  jus  and  dlco.  It  means,  liter- 
ally :  I  speak  the  law ;  that  is,  I  speak  as  the  law  speaks.  The 
law,  however,  must  speak  antecedently  to  the  judge,  and  he 
must  speak  after,  and  as  it  has  spoken.  That  is  to  say.  Juris- 
diction must  precede  all  judging,  and  all  judging,  without 
Jurisdiction  first  given,  is,  in  Jurisprudence,  illegal,  and,  iu 
Ethics,  immoral. 

Jurisdiction  is,  therefore,  for  laws  what  property  is  for  men. 
Each  man  does  not  own  the  whole  world,  but  simply  has  his 
own.  So  no  one  law  attempts  to  regulate  every  thing,  but  has 
its  own.  Or,  it  is  for  laws  what  husiness  is  for  men.  No  man 
exercises  all  trades,  but  each  has  his  own  vocation.  In  that 
thronged  city,  on  that  crowded  wharf,  you  see  many  men 
working  and  moving,  bat  each  one  has  bis  own  bup^ne^,  hia 
own  line  of  movement.  So  is  it  vrith  ^ixory  biw.  There  are 
many  divisions  of  Law,  as  we  shall  se«  afterward,  working  iu 

^Big|ftz»l  Ittt  Ut«lj  imde  toiDe  Mwimaloui  Mnii(ciDcaU  lo  htr  coarU  oC  A4- 
mlnltf,  tod  exlcniM  tVrlr  jarMHeUoa  to  tao  Uiid,  te  ouet  prcMtited  tkom  tW 
rxity  GxmdiL 


jl-    :1 


48 


JTIKISDICTION   GIVEN  BY  THE   LAW-MAKER. 


DISREGARD   OF  JURISDICTION   IS   CONFUSION. 


49 


heaven,  over  earth,  and  in  the  mind,  forming  together  one 
harmonious  whole.  But,  each  law  has  its  own  husiness  toper- 
form,  and  the  limitation  of  each  law  to  its  proper  hcsiness  is 

its  jurisdiction. 

Thus,  clear  and  simple  ideas  can  be  formed  of  jurisdiction,— 
a  subject  on  which  many  have  confused  ideas,  from  the  absence 
of  explanation,  and  whereon  such  perilous  mistakes  have  been 
made.  The  subject  belongs  here,  and  not,  as  might  at  first 
appear,  under  Jurisprudence.  It  belongs  here,  where  we  are 
considering  the  common  foundations  of  Ethics  and  Jurispru- 
dence. For  both  have  their  respective  jurisdictions.  By  dis- 
re^^ardino"  this  fact,  the  public  conscience  has  often  been  made 
to  invade  the  sphere  of  the  private,  and  the  private  that  of  the 
public.     We  may,  then,  be  satisfied  that 

Every  Law  implies  Jurisdiction.  Jurisdiction  is  the  lim- 
itation OF  A  Law  to  its  troper  Subjects. 

14.  The  jurisdiction  of  a  law  must  be  fixed  by  the  authority 
ordaining  that  law,  and  not  by  its  subjects. 

Make  the  simplest  rule  of  action  for  yourself,  and  write  it. 
You  must  specify  something  to  be  regulated.     That  specifica- 
tion forms  the  jurisdiction  of  that  small  rule.     So  it  is  with  all 
Law,  from  this  to  the  highest  human  laws,  and  from  these  to 
the  laws  of  God.    The  power  which  makes  a  law  declares  and 
confers  jurisdiction.     Jurisdiction  flows  from  the  law-making 
power,  and  not  from  those  who  administer  or  execute  that  Law. 
They  may  think  that  the  jurisdiction  ought  to  be  enlarged  or 
extended.     But  this  point  must  be  determined  by  the  law- 
makers.    Thus,  the  Legislature  of  a  State  organizes  courts  of 
justice,  each  with  specified  jurisdiction.     The  Executive,  the 
Governor,  could  not  make  that  court  of  justice ;  nor  confer 
jurisdiction ;  nor,  when  it  is  established,  can  he  enlarge  or 
contract  its  jurisdiction.     But  the  point  to  be  observed  by  you 
is,  that    this    is    not  a  mere    fact    in    political  and  judicial 
regulations,  a  fact  with  which  you  are  more  or  less  fimiiliar, 
through  your  own  observation.     It  is  a  principle  belonging  to 
all  law,  divine  or  human,  public  or  private.    It  springs  from 


the  nature  of  a  rule  of  action.  "Whosoever  makes  a  rule  of 
action  specifies  something  to  be  done,  permitted,  avoided.  To 
specify  is  to  limit,  and  Jurisdiction  is  limitation.  We  can, 
then,  acknowledixe  that 

The  Jurisdiction  of  any  Law  is  fixed  by  the  Authority 

ORDAINING   the   LaW. 

15.  In  any  well-arranged  system  of  laws,  the  disregard  of 
the  bounds  of  jurisdiction  for  each  part  must  produce  disorder 
for  the  whole,  unless  the  invaded  part  be  lawless. 

For  example,  in  American  institutions,  alike  in  the  States 
and  in  the  United  States,  are  three  co-ordinated  systems— the 
legislative,  executive,  and  judicial.      These,  all,  are  subordi- 
nated to  a  higher  system— that  of  a  constitution.     The  consti- 
tutions and  laws  of  the  States  are  not  to  contradict  those  of 
the  United  States.     All  are  under  the  control  of  one  people, 
w^ho  form  or  change  the  organic  law  in  a  prescribed  way. 
These  are  so  many  spheres  of  jurisdiction  for  subordinated  and 
co-ordinated  systems  of  law.     Our  whole  welfare  lies  in  keep- 
ing each  to  its  jurisdiction.     Suppose  a  legislature  to  attempt 
to  execute  law,  instead  of  making  it ;   an  executive  to  make 
law,  instead  of  executing ;  a  court  of  justice  to  make  a  law, 
instead  of  stating  what  the  law  is ;  or  all  to  break  and  disre- 
gard their  constitution ;  or  one  State  to  invade  the  functions 
of  the  nation ;  or  the  nation  those  of  one  State ;  or  a  governor, 
legislator,  or  judge,  to  put  forth  an  article  of  a  constitution, 
instead  of  obtaining  it  from  the  people  in  the  ordained  way. 
It  is  evident  that  our  whole  American  system  would  be  thrown 
into  disorder.     The  cause  would  be,  neglect  of  the  hoimds  of 
jurisdiction.     But  what  you  are  to  observe  is,  that  this  fact, 
BO  familiar  to  you,  because  you  have  grown  up  among  those 
institutions,  is  but  the  representative  of  a  fact  belonging  to  all 
Law.     The  constellated  American  system  merely  exemplifies  a 
principle  which  must  accompany  all  rules  of  action,  all  Law, 
moral  or  judicial,  divine  or  human.     No  jurisdiction  can  be 
enlarged  to  invasion'  on  another  without  producing  injurious 

interference.    No  jurisdiction  can  be  lessened,  by  withdrawing 

4 


I 


■I'l 


!;■ 


50 


TJNIVERSALITr   OF   EUI.ES   FOR   JURISDICTION. 


from  it  any  part  of  its  subjected  actions,  without  injurious 
inefficiency.  In  either  case,  actions  must  be  ill  regulated  or 
unregulated.  There  must  be  disorder,  and  there  may  be 
anarchy.  Keligious  laws  put  in  place  of  the  civil ;  the  civil  in 
place  of  the  religious ;  the  military  in  the  place  of  the  civil ;  the 
rules  for  private  conscience  claiming  to  annul  the  laws  for  court3 
of  justice ;  or,  reversely,  the  public  law  invading  the  domain 
of  private  conscience— these  are  examples  of  encroachments  by 
one  jurisdiction  upon  another.  They  break  the  order  of 
society.  It  is  so  universal  a  principle  that  it  extends  to  all 
the  laws  of  nature.  Each  law  of  nature  has  its  own  sphere  of 
jurisdiction,  its  system  to  regulate,  and  its  series  of  actions. 
Encroachments  by  one  upon  the  bounds  of  another  would 
cause  disorder  and  ruin. 


m 


"  The  heavens  them<5elve3,  the  planets,  and  this  centre, 
Observe  degree,  priority,  and  place. 

»  ♦  ♦  ♦  » 

Take  but  degree  away,  untune  that  string, 
And,  hark,  what  discord  follows  !     Each  thing  meets 
In  mere  oppngnancy :  the  bounded  waters 
Should  hft  their  bosoms  higher  than  the  shores, 
And  make  a  sop  of  all  this  sohd  globe." 

Shaks.,  Troil,  Act  I.  Sc.  iiL 

The  principle  extends  to  the  laws  of  God  Himself  IIa\dng 
made  man  free,  and  left  man  "  in  the  hands  of  his  counsel,"  the 
Deity  respects  the  jurisdiction  of  the  soul  which  He  has  given, 
and,  though  able,  wills  not  to  compel. 

We  shall  subsequently  see  when  and  how  one  jurisdiction 
can  and  must,  and  that  legally,  invade  another. 

It  is,  then,  evident,  that  in  any  well-eegulated  System  of 
Laws,  the  disregard  of  the  Bounds  of  Jurisdiction  for  each 

PART  MUST  produce  DISORDER  l?OE  THE  WHOLE. 

Such  are  the  precedent  conditions  from  Polity,  such  are  the 
subjects  of  Law,  and  such  the  principles  of  Jurisdiction. 
Never  could  you  know  from  what  misunderstandings  and 
erroneous  opinions  these  explanations  can  save  you,  unless  you 


VALUE   OF  THESE   COMMON   PRINCIPLES. 


51 


had  tried  both  methods  of  study ;   the  common,  without  the 
explanations,  and  the  present  one  with  them. 

I  have  purposely  generalized,  that  you  might  see  what  Lord 
Bacon  commended :  the  Laws  of  Laws  {le^es  legum\  and  that 
you  might  have  principles  to  guide  you  in  every  part  of 
Ethics  and  Jurisprudence. 

From  these  principles  of  Law,  we  will  proceed  in  the  next 
Lecture  to  its  definition. 


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LECTUEE    III. 


DEFINITION  OF  LAW. 

In  the  subjects  of  Ethics  and  Jurisprudence  we  have  seen 
the  mental  habits  which  they  demand,  and  the  common 
principles  which  they  include. 

I  now  come  to  a  more  definite  view  of  Law.  Before,  we  were 
satisfied  with  the  most  general  conception  of  it  as  a  rule  of 
action. 

For  this  specific  view,  I  propose,  first,  explanations  from  the 
words  used  for  Law  by  difierent  civilized  races— the  specu- 
lative and  tlie  practical.  We  will  then  pass  to  a  more  exact 
definition  from  the  thing. 

In  the  words,  one  fact  will  strike  you.  The  various  races 
have  shown  their  views  in  their  words,  their  prevailing  spirit, 
in  their  established  terms.  Speculative  races,  among  whom 
nationalities  have  been  broken,  incline  to  that  view  of  Law 
which  regards,  first  and  most,  the  ruling  power,  and  which  dis- 
regards local  liberties  in  the  ruled.  The  practical  races,  among 
whom  nationalities  have  been  compacted,  incline  to  that  con- 
ception which  reverses  this  movement,  which  begins  with  the 
ruled,  and  imposes  only  so  much  regulation  from  the  ruling 
authority  as  is  indispensable  for  unity  and  harmony. 

Our  Saxon  ancestors  had  a  word  for  Law  which  we  have  not 
retained    It  is,  "  aeJ'*    The  word  itself  is  almost  familiar  to 

♦  Bosworth. 


I 


1 '» 


if 


I 


54  LAW   FROM   THE   WORD  ;    IN*  THE   GOTHIC   FAMILY. 

*  US,  from  the  existing  adverb  aye,  as  in  the  expression,  "  forever 
and  ay^."*  It  means  what  has  always  or  long  flowed  on, 
till  it  has  become  a  custom— hence,  a  law.  Thus,  ae-hec^  law- 
book; ae-domas,  law-dooms,  law-cases;  Oristes-ae,  Christ's 
law,  the  Gospel,  Christianity.  This  idea  is  retained  in  the 
maxim,  that  common  law  is  that  "whereof  the  memory  of 
man  runneth  not  to  the  contrary."  This  view  of  Law  is  most 
coincident  with  the  natural  views  of  tho  race  which  speaks 
this  language.  This  word  considers  Law  as  a  derivation  from 
collective  and  superior  reason,  found  by  the  individuals  of  one 
generation,  and  flowing  past  them  to  other  times.   • 

"  AS  "  being  the  word  for  common  law,  they  expressed  statute 
laws  by  asetnessa.     This  means  law  set^  law  statMiovy, 

They  then  used  an  entirely  different  word  for  the  constitu- 
tion of  a  State,  viz.,  lag  (leg),  from  lagu,  which  is  from  licgan, 
and  this  from  ligan,  Gothic.  The  original  meaning  is,  to  lay 
down.  The  constitution  of  a  State  is  the  organic  law,  laid  down 
as  the  basis  for  all  other  and  subordinate  laws— laid  down  as  the 
channel  along  which  the  stream  of  the  common  law  {ae)  and 
of  the  decisions  of  courts  (aedbmas)  shall  flow.f  Thus  they 
discriminated  common  and  statute  law,  from  the  political  frame 
of  a  constitution. 

We  have  retained  this  latter  word  in  our  English  term  law, 
but  have  made  a  different  application  of  it.$  Law,  as  we  now 
use  the  term,  is  applied  not  to  a  polity,  but  to  rules  of  action 
under  a  polity.  The  word  law,  as  we  use  it,  means,  then, 
etymologically,  what  is  laid  down.  This  makes  prominent  the 
idea  that  Law  is  from  a  superior  authority  to  a  subordinated 
•     subject.    It  is  laid  down. 

The  German  word  takes  nearly  the  same  view.     Law  is 
gesetz,  that  which  is  set.    But ''  recht "  is  Procrustean. 

The  Latin  word  is  Ux  Qegis),  from  which  we  get  such  English 

*  Gr.,  CiLBl, 

f  See  Bosworth  and  ^ttmUUer,  Lex.  Ang.  Sax.,  p.  160. 

X  See  Webster's  Dictionary,  words,  law,  lay. 


LAW   FROM   THE   WORD;    IN   THE   CLASSIC   AND   SLAVIC.         55 

words  as  %al,  %alize,  %^6•lator.  It  is  drawn  from  a  root 
which  signifies  to  unite,  to  bind  together  (a  ligando).^  We 
may  see  a  derivative  stem  from  the  same  root,  in  the  English 
word,  Imk,  The  Latin  view  is  directed  to  the  many  parts 
which  are  homid  together  in  one  system  by  law.  The  Latins 
conceived  that  the  most  diverse  interests  and  populations 
could  be  compacted  together  by  a  good  system  of  polity  and 
law.  Hence  their  admirable  legislation,  hinding  together  first 
Italy,  and  then  foreign  nations,  into  one  body  politic.  "  Hoe 
tihi  erunt  artes^'  &c.     Virg.  ^n.,  1.  6,  847-853.     • 

The  Greek  word  is  nomos  (voiiog\  from  which  we  have 
nomothetic^  and  tlie  terminations  of  astronomi/,  Siutonomyy 
and  like  terms.  The  Greek  word  is  from  a  root  signifying  to 
divide,  as  shown  in  ve/zw,  to  distribute.  The  Greek  view  of 
Law  is,  in  its  order  of  movement,  the  reverse  of  the  Latin.  It 
considers  Law  as  one  rule  to  he  distributed  among  many.  The 
Latins,  beginning  with  the  parts,  and  looking  at  facts  and 
natural  limitations,  had  the  most  consummate  practical  wisdom 
and  forbearance  in  legislation.  They  could  bind  all  stones 
into  one  arch  of  empire.  The  Greeks,  beginning  with  the  one 
rule  to  be  distributed,  viewing  it  as  a  conception  to  which  facts 
must  conform,  were  admirable  theorists  on  law,  but  so  wedded 
to  their  theories,  so  incapable  of  adapting  law  and  government 
to  circumstances,  that  Greece  was  always  in  a  state  of  disin- 
tegration.    The  Greek  law-bed  was  the  bed  of  Procrustes. 

The  Slavic  word,  as  seen  in  the  Eussian,  is  zakon.  It  is 
derived  from  a  root,  signifying  to  join,  to  unite.f  The  Eus- 
sian view  of  Law  is  like  the  Eoman.  It  is  directed  to  the 
many  parts,  which  are  to  be  joined,  to  be  united  in  one  system. 
It  begins  with  facts,  populations,  interests,  opinions.     In  view 

*  It  is  not  from  Ugo,  to  read,  nor  from  lego,  to  choose.  The  law  is  read  if  writ- 
ten;  it  is  supposed  to  be  chosen;  but  it  may  be  neither  the  one  nor  the  other. 
Varro  and  Cicero  could  not  have  indicated  such  derivation  had  they  possessed 
the  existing  materials  of  philology. 

f  Sans.,  yuga,  yuj;  Gr..  ^£VVOf ;  Lat..  jugum;  Syriac  and  Arabic,  zwy;— all 
resting  on  idea  of  joining. 


56 


LAW   DEFINED   FROM   THE   THING  I    1.    MATERIAL. 


LAW  defined:   2.  source;   3.  form. 


57 


of  these,  it  considers  what  system  of  law  and  government 
adapted  to  these  circumstances  can  join  them  together  in  one 
body  politic.  The  Kussian  experience  has,  accordingly,  been 
accordant  with  Roman  history  in  compacting  empire,  and  not 
with  the  Grecian,  in  causing  disintegration. 

Regarding  letters  as  significant,  tlie  Hebrew  word  for  Law 
means,  correspondent  movement  in  all  actions  and  existences.* 

Such  are  the  views  of  Law  presented  by  the  words  expressing 
it.  They  prepare  you  for  a  more  full  definition  from  the 
thing. 

Law  is  a  rule  of  action  /  emanating  from  reason  /  in  the 
form  first  of  an  idea,  then  of  an  outward  expression  /  for  some 
good  intended  in  or  through  the  subject  directed  hy  it, 

I  will  unfold  this  statement. 

There  are  four  parts  in  this  definition,  which  show  the 
material,  the  source,  the  fonn,  and  the  purpose  of  Law.f 

1.  The  Material. — Law  is  a  rule  of  action.  This  states  the 
matter  of  which  Law  treats.  It  has  been  explained,  but  I  will 
recapitulate.  The  particulars  are  actions.  The  general  term 
embracing  them  is  a  rule.  Thus,  commercial  law  is  a  rule  for 
commercial  actions ;  military  law,  a  rule  for  military  actions ; 
criminal  law,  for  criminal  actions;  natural  law,  for  natural 
actions ;  and  so  throughout  all  kinds  of  actions.  Rule  belongs 
to  the  category  of  disposition.  A  good  disposition  of  parts,  as 
of  troops,  forms  order,  and  a  bad  one,  disorder.  Order  by 
method  makes  a  system.  A  system  of  parts  arranged  without 
special  regard  to  action,  presents  classes;    and,  arranged  for 

*  The  Celtic  view  of  law  {ddeddf,  gijfraeth)  seems,  in  the  former  of  these  words,  to 
correspond  to  the  Grecian.  Law  is  that  which  is  given  by,  or  proceeds  from  one  to 
many.  Celtic  races  need  the  one-man-power,  nr  become  disintegrated.  The  later 
Hebrew  view  is  like  the  Grecian,  nrrr^^  law,  is  from  n-."',  to  teach,  and  this,  from 
the  physical  sense,  to  distribute.  The  ITebrew  monarchy  broke  into  fragments. 
But  the  old  theological  view  of  Law,  as  shown  by  hieroglyphics  for  letters,  is  the 
most  admirable.  Law  is  harmony ;  part  correspondent  to  part,  as  the  notes  and 
instruments  in  a  concert  of  music.  This  is  divine  law,  and  it  can  cover  tho 
world. 

f  Material,  efficient,  formal,  final  cause. 


intended  specific  action,  organization.  Order  and  system  for 
intended  actions^  give  rules.  In  these  rules  are  laws.  Thus, 
place  and  precision  can  be  given  to  the  generic  signilication  of 
Law.     Such  is  the  material ;  a  rule  for  action. 

2.  The  Source. — Law  is  an  emanation  from,  reason.  This 
Btates  the  origin,  the  efficient  cause  of  Law.  It  comes  from 
mind,  not  from  matter ;  and  in  mind,  not  from  will,  as  its  first 
source,  but  from  reason  directing  the  will.  Accordingly, 
Cicero  says,  Lex  est  ratio  summa,^  Law  is  supreme  reason. 
All  divine  laws  are  from  divine  reason ;  human  laws,  from 
human  reason  ;  savage  law,  from  savage  reason ;  civilized  law, 
from  civilized  reason ;  and  thus,  throughout. 

Reason  is  like  mind,  uncreated  or   created:    the  created, 
angelic  or  human ;  the  human,  collective  or  individual. 
Such  is  the  origin  of  all  Law — reason. 

3.  The  Form. — Zaw  is  first  in  the  form  of  an  idea^  then  of  an 
outioai'd  expression.  Tliis  part  of  the  definition  gives  the 
internal  and  external  form  in  which  Law  appears.  The  in- 
ternal is  in  thought ;  the  external,  in  signs  or  things. 

Thus,  a  man  devising  a  machine  plans  it  in  thought ;  then 
expresses  liis  plan  in  drawings,  estimates,  descriptions ;  then 
puts  it  forth  in  things,  in  the  machine  made  and  working. 
The  rule  of  action  was  first  a  thought,  then  an  expression  by 
signs,  and  finally  by  things.  A  legislature  passing  a  law  de- 
liberates and  compares  the  ideas  of  one  with  those  of  another. 
It  takes  that  opinion  whicli  has  secured  the  required  majority, 
and  sends  the  statute  forth  in  language  to  direct  certain  actions 
among  the  people.  The  Deity  creating  may  be  supposed  to 
form  His  laws  in  idea,  before  putting  them  into  nature.  Lex 
est  ratio  summa  insita  in  NATURA.f 

Hence,  by  the  words  "  outward  expression,"  I  intend  expres- 
sion both  by  signs  and  things.  Under  signs,  I  include  both 
language  as.  a  system  of  conventional,  and  symbols  as  a  series 
of  arbitrary  and  limited  signs.     The  laws  of  matter,  suppose 


*  Do  Leg.,  1,  6. 


t  Cic,  De  Leg.,  1,  6. 


58. 


LAW   DEFINED   FROM   THE   THIKG :     4.    PURPOSE. 


those  of  the  solar  system,  are  expressed  in  things  by  the  Eternal 
Mind.*  But  men,  discovering  them,  express  them  in  language 
or  in  mathematical  symbols. 

Such  is  the  form  of  Law ;  first  a  thought ;  then  a  manifesta- 
tion in  signs  or  things. 

4.  The  Purpose. — Law  is  for  attaining  some  intended  good 
in  or  through  the  subject  directed  hy  it  This  states  the  end, 
the  final  cause  of  Law.  It  is  for  "  some  good."  That  good  is 
set  forth,  by  distinct  intention,  an  act  of  the  will.  The  good 
may  be  real  or  supposed ;  it  is  still  "  intended."  The  "  sub- 
jects directed"  are,  as  we  have  seen,  subordinated  and  co- 
ordinated systems.  The  good  intended  is  usually  in  and  for 
"  the  subject  directed."  A  father  making  domestic  regulations 
intends  the  good  of  his  family.  The  laws  for  any  community 
intend  the  common  good  in  that  very  community.  But  the 
good  intended  may  not  be  for,  but  "  through,"  the  subject 
directed.  Thus  a  nation  may  ordain  war.  It  may  command  its 
citizens  to  die  for  the  public  safety.  Tlie  good  then  proposed 
is  through  the  subjects  so  directed,  not  in  them.  They  are 
commanded  by  law  to  endure  for  themselves  evils  to  promote 
the  public  welfare.  That  father  sends  all  his  sons  to  die  for 
the  country  in  battle.  He  proposes  through  that  sacrifice  the 
common  good.  And  likewise,  even  in  the  divine  laws,  we 
see  a  lower  good  sacrificed  to  obtain  a  higher.  We  thus  see 
that  the  immediate  good  of  any  subjected  system— a  man,  a 
family,  a  village,  a  city,  an  army,  an  order  of  people,  a  part 
of  creation— is  not  always  intended ;  because  evils  suffered 
by  a  part  may  be  necessary  for  a  higher  and  wider  good  in 

the  whole. 

Such  is  the  purpose  of  Law ;  some  good  in  or  through  ita 

subjects. 

Out  of  this  general  exposition  of  the  four  parts  of  the  defi 
nition,  one  point  in  the  last  requires  to  be  selected  for  peculiar 

*  Portions  of  the  revealed  law  in  Scripture  appear  to  have  been  given  in 
symbols.  See  the  Revelations  of  St.  John,  the  prophecies  of  Ezekiel,  Daniel,  and 
others. 


THE   GOOD   PROPOSED  BY   LAW. 


59 


attention.  It  is  the  good  which  Law,  both  in  Ethics  and 
Jurisprudence,  proposes  for  its  end.  Is  this  good  simple,  or 
does  it  ever  include  several  elements  ?  Mistakes  in  answering 
this  question  have  produced  disasters  in  history,  and  dangerous 
opinions  in  speculation. 

1.  The  good  proposed  by  all  right  law  includes  three  ele- 
ments. 2.  The  three  should  coexist,  while  one  or  the  other 
predominates  according  to  the  circumstances  of  the  subject. 

The  three  elements  of  that  good  which  law  intends,  are 
virtue,  duty,  welfare :  what  is  virtuous  {to  KaXdv) ;  what  is  due 
(  TO  diKaiov) ;  what  is  expedient  {to  GvfKpEpov),  All  action  im- 
plies internal  and  external  ends.  Internally,  we  desire  to  be 
habitually  what  is  approvable.  This  is  the  conception  of 
Virtue.  Externally,  we  desire  to  conform  in  action  to  the 
obligations  imposed  by  our  relations  to  others.  This  is  the 
conception  of  what  is  due — of  Duty.  Externally,  also,  we 
desire  to  obtain  what  is  advantageous  for  our  happiness.  This 
is  the  conception  of  Welfare.  These  three  objects,  entwined 
necessarily  in  the  final  purpose  of  law,  are  given  by  Demos- 
thenes, in  a  definition  admired  and  assented  to  by  the  ages 
since  his  time  :  "  Laws  intend  what  is  just,  what  is  honorable, 
what  is  useful"  {bt  6e  vdfioc  to  dinaiov^  kgl  to  Ka  Xdv,  nai 
to  av  fi(pepov  (ioyXovTai).  This  is  the  commencement  of  that 
definition  of  Law  (Orat.  1,  contra  Aristog.),  in  which  the  orator 
shows  his  comprehensiveness  in  philosophy  to  be  equal  to  his 
effectiveness  {detvoTTjg)  in  eloquence. 

Lest  every  mind  that  I  address  should  not  understand  and 
discriminate  each  of  these  elements,  I  will  illustrate  them  one 
by  one,  especially  from  synonymous  words. 

We  ask  for  what  is  virtuous,  when,  in  any  course  of  action, 
we  consider  what  we  can  approve  in  ourselves  as  right.  We 
make  this  the  exclusive  aim,  when  we  are  not  compelled  by 
any  external  obligation,  nor  moved  by  any  personal  interest. 
As  all  men  are  constituted  alike,  the  action  which  we  respect 
and  honor  in  ourselves  is  honored  by  other  men.  Hence  come 
the  synonymous  words,  What  is  noUcj  honorable^  admirablcy 


1 


i 


60 


THREE   ELEMENTS   IN   THAT  GOOD. 


VIRTUE,   DUTY,    WELFARE,   COEXIST   THEREIN. 


61 


excellent,  handsome  in  condicct^  morally  leautiful.  Hence; 
reversely,  Use,  mean^  dishonorable,  disgraceful,  contemptible. 
Tlie  Greek  term  for  this  element  is  the  beautiful,  {to  KaXbv). 
It  is  moral  beauty  in  actions.  The  Latin  term  is,  honestiimy 
meaning,  originally,  what  is  honored.  Examples  of  a  striking 
character  are  in  the  acts  of  martyrs,  or  of  heroic  men ;  Codrus 
devoting  himself  to  death  for  Athens ;  Curtius  leaping  into  the 
gulf  for  Kome;  Decius,  the  father,  and  son,  consecrating 
themselves  to  be  slain  by  the  enemy  to  make  victory  certain. 
But  a  common  example  is  any  act  of  our  own  done  solely 
because  it  is  right.     Such  is  one  element.  Virtue. 

What  is  due  or  just  is  determined  by  our  relations  to  others, 
imposing  obligations  on  ourselves.     Another  has  authority; 
we  are  under  obligation  to  obey.     Or,  we  have  made  a  com- 
pact with  him ;  we  are  bound  to  keep  it.    We  owe  him  a 
debt ;   we  are  bound  to  pay  it.    He  is  a  relative,  a  friend,  a 
benefactor ;   the  relation  imposes  correspondent  duties.    The 
Greek  term  for  this  idea  is  the  just  {to  SiKatov).    It  is  derived 
from  the  same  root  with  the  word  for  two.     It  implies  equality 
between  two  sides— that  idea  which  lies  at  the  basis  of  all 
Justice  (Practical  Ethics ;  Duties  to  others).     The  Latin  term 
is,  justum,  or,  in  its  earliest  sense,  jus.    Both  are  from  the 
primitive  idea  of  commanding  {jussi,jussum),  and  this  from  a 
root  expressing  the  physical  sense  of  binding.     The  Latins  look 
to  the  effect;  we  are  bou7id  by  an  obligation  from  right  in 
another  (Prac.  Eth.,  ub.  sup)    But  the  Greeks  rather  regard 
the  principle,  equality.    In  English  we  express  the  fact,  that  we 
are  bound,  by  the  terms,  duty,  obligation,  account ableness,  lia- 
bility, respcmsibility,  engagement,  and  the  like;  but  the  principle 
arising  from  the  relation,  by  justice,  equity,  fairness,  fitness, 
dueness,  reasonableness,  propriety,  and  others.    All  these  terms 
ifnply  another  party,  and  external  relations  to  him  that  impose 
obU^^ations    on    ourselves.*      Such   is    the    second    element, 
Duty. 

♦  How  strange  it  is  that  some  writers  on  morals  should  have  made  this  the 
only  element  1    As  a  result,  their  systems  are  defective. 


In  asking  for  what  is  expedient,  we  look  beyond  personal 
excellence  within,  and  external  relations  to  other  persons,  and 
set  the  will  on  things  which  we  desire  to  possess  and  enjoy. 
Examples  are,  a  man  making  a  fortune,  a  State  increasing  its 
territory  or  its  revenues.  This  is  expressed  in  Greek  by  the 
term  (to  ovucp^gov) ;  literally,  that  which  conduces ;  which  pro- 
motes ;  which  bears  us  with  it  to  our  happiness.  The  Latin 
term  is,  utile,  that  which  can  be  used.  ,  Our  English  synony- 
mous expressions  are,  what  is  useful,  advantageous,  profitable, 
expedient,  and  the  like.  We  pursue  interest,  profit,  benefit, 
advantage,  welfare,  happiness.  We  shun  loss,  disaster,  detri- 
ment, misfortune.  In  all,  we  look  externally  to  something  to 
be  had  for  our  happiness.  Such  is  the  third  element — that  of 
Welfare. 

We  have  thus  formed  distinct  ideas  of  the  elements. 

These  three  elements  enter  into  all  Law,  into  all  sound  rules 
of  Ethics  and  Jurisprudence.  A  nation  in  its  acts  considers 
what  is  honorable,  what  is  just,  what  is  useful.  Such  an  arti 
cle  in  a  treaty  we  demand,  because  the  omission  of  it  would 
be  dishonorable ;  for  example,  abandoning  an  ally,  or  a  body 
of  brave  troops,  or  the  population  of  a  faithful  province,  to  the 
vengeance  of  an  enemy.  Such  an  article  we  accept  as  just, 
because  we  are  bound  to  it  by  previous  engagements.  Such 
an  article  we  desire,  because  advantageous  to  our  commerce, 
manufactures,  revenue.  If,  from  this  example,  we  descend  or 
ascend  the  scale  of  Law,  down  to  private  morals  or  upward  to 
the  Deity,  the  same  elements  will  be  seen.  The  rules  of  a 
father  for  his  children  would  be  summed  in  doing  what  is  right 
(to  KaXdv) ;  fulfilling  obligations  {to  diKaiov) ;  securing  welfare 
(to  oviKpEQov).  The  revealed  will  of  God  calls  men  to  god- 
likeness  {to  naXdv) ;  to  obedience  to  the  divine  will  {to  dttialov) ; 
to  eternal  happiness  (to  ovfjicptgov)* 

*  A  resemblance  is  even  in  God's  laws  for  nature.    For  each  thing  made,  He 
gives  inwardly  structure,  and  outwardly  both  proportion  and  means  for  support. 
Thus  a  tree  has  its  inward  organization.     It  is  made  relative  to  the  earth  in  size 
It  is  provided  with  means  for  drawing  nourishment  and  continuing  its  kind. 


.  f  I 


62 


EVILS   FROM  THEIR   SEPARATION! 


EVILS   THEREFROM   ARE   PUBLIC   AND   NATIONAL. 


63 


The  first  proposition  may,  then,  "be  regarded  as  elucidated 
and  established.  The  good  proposed  by  all  good  law  includes 
three  elements. 

2.  These  tliree  elements  should  coexist  in  the  rules  of 
Ethics  and  Jurisprudence,  but  with  one  element  or  the  other 
predominating,  according  to  the  circumstances  of  the  sub- 
ject. 

This  is  a  fundamental  principle.  It  is  a  golden  rule  in  all 
morals  and  legislation.  With  it,  these  sciences  may  be  carried 
towards  perfection  for  the  increase  of  human  happiness.  With- 
out it,  their  former  and  existing  imperfections  must  attend 
them. 

The  contrary  view  has  prevailed  extensively,  and  most 
injuriously.  Each  of  the  three  elements  has  been  recognized ; 
but  one  or  the  other  has  been  exclusively  taken  as  the  basis 
for  systems  of  Ethics,  and  for  the  rules  of  public  policy.  The 
error  has  consisted  in  the  attempt  to  found  them  upon  a  single 
principle. 

Tims,  as  we  shall  see  more  fully  when  we  consider  Ethics 
separately,  some  have  referred  all  morals  to  the  third  element, 
to  the  single  principle  of  expediency,  and  made  morality  a 
calculation  ;  others,  to  the  second,  to  obligation  singly,  and 
made  morality  a  bargain ;  others,  to  the  first  element,  to  in- 
ward excellence  alone,  and  made  morality  an  aspiration.  The 
last,  however,  have  formed  the  nobler,  safer,  and  wider  sys- 
tems; because,  in  Ethics,  this  element  of  Virtue  must  pre- 
dominate. 

As  in  the  rules  for  private,  so  has  it  been  in  those  for  public, 
action. 

In  the  age  of  chivalry  and  the  Crusades,  the  first  element 
was  made  in  Europe  too  exclusive  both  in  theory  and  in  practice. 
The  common  aspiration  was  for  honor  through  deeds  of  glory. 
Romantic  but  rash  enterprises  were  undertaken.  Armies 
were  sent  to  perish  between  Europe  and  Asia.  Kingdoms 
were  impoverished  and  depopulated.  And  honor  was  ele- 
vated not  only  above  the  third  element,  interest,  but  above  the 


second,  justice.    Extortion  and  violence  were  by  the  side  of 
heroic  achievement.     Yet  the  sentiment  saved  Europe. 

In  the  age  following,  we  see  the  third  element,  that  of 
interest,  made  too  exclusive,  by  public  writers  and  in  public 
actions.  The  principle  prevailed  which  once  afflicted  Greece, 
that  the  only  test  of  right  was  expediency.  The  common  say- 
ing was  in  almost  every  one's  mouth,  that  nothing  which  was 
useful  was  unjust ;  that  no  commonwealth  could  be  governed 
without  injustice."^  Machiavelli  was  the  embodiment  of  this 
school.  "Is  there  an  unruly  province?  Exterminate.  Are 
there  rivals?  Execute  them  without  or  by  trial."  From 
these  sentiments  came  the  public  and  private  crimes  which 
make  that  part  of  history  a  scene  of  revolting  horrors. 

In  this  modern  age,  there  is  at  least  respect  for  the  second 
element — that  of  justice.  Nations  cannot,  in  the  present  state 
of  public  sentiment,  disregard  their  engagements.  But  the 
idea  is  now  too  prevalent,  that  so  long  as  a  State  breaks  no 
positive  stipulations  which  can  be  enforced,  it  may  do  what  it 
will.  States  have  been  known  to  repudiate  their  debts  when 
these  could  not  be  enforced  through  a  suit  or  war. 

The  cause  of  such  deviations  is  in  the  rage  of  the  human 
mind  for  single,  when  nature  and  sound  reason  demand  co- 
ordinate, ideas.f  The  metaphysician  seeks  one  principle  in  his 
own  head,  as  the  centre  of  his  system,  instead  of  looking  first 
outwardly  to  nature,  where  he  would  see  simple  principles  in 
combined  action.  The  common  mind  adopts  this  fantastic 
unity  from  men  of  speculation,  as  saving  thought  and  clearing 
the  ground. 

But  if  you  would  think  wisely  in  Ethics  and  Jurisprudence, 
this  common  error  must  be  cast  away.     The  three  elements 

*  Kent.    Grotius. 

f  If  I  were  asked  to  give  a  single  word  for  sound  thinking  in  all  Science  and 
all  Art,  I  would  say,  Relation.  All  knowledge  and  all  skill  regard  relations 
between  things,  not  one  thing  solely.  Instead  of  beginning,  therefore,  in  physical, 
mental,  moral,  literary  sciences,  as  men  usually  do,  with  one  element  alone,  rather 
begin  with  the  conception  of  opposite  elements,  forming  co-ordinated  and  sub- 
ordinated systems. 


64 


BEASONS   FOE  THE   UNION  :    EXAMPLES. 


THEIR  UNION    ANALOGOUS   WriH   NATURE. 


65 


which  all  men  and  all  systems  admit  singly,  because  fixed  by 
Nature  herself,  must  be  ever  united  with  one  ruling,  but  with 
that  one  varying  with  circumstances. 

The  reason  is,  that  in  morals  and  legislation  you  cannot 
pursue  one  alone,  and  neglect  the  others,  without  producing 

defect. 

Take  plain  examples,  and  begin  in  common  life.  A  man 
has  a  high  sense  of  honor,  but  he  does  not  pay  his  debts,  and 
he  wastes  his  fortune.  He  has  a  part  of  the  first  element 
without  the  others.  Wlio  would  not  pronounce  his  conduct 
and  character  morally  defective  ?  Another  man  looks  to  his 
interest  only.  He  will  not  pay,  without  compulsion,  even  the 
widow  and  the  orphan  whose  money  is  in  his  hands.  He 
will  stoop  to  any  means,  however  disgraceful,  for  profit.  He 
is  a  villain.  He  has  the  third  element  singly.  A  gambler 
pays  the  money  gained ;  but  he  will  use  dishonorable  means 
for  advantage,  and  he  puts  his  interests  at  hazard.  He  observes 
(in  gambling  transactions)  the  second  element,  "  that  which  is 
due,"  but  does  not  regard  the  others.  Come  to  bodies 
of  men.  A  corporation — suppose  a  bank — ^pays  all  claims 
and  secures  large  profits,  but  it  acts  disgracefully  to  its 
employes.  It  does  not  pay  them  enough  for  their  support ; 
it  screws  from  them  excessive  labors,  and  mortifies  them  by 
vexatious  regulations.  We  have  the  second  and  third  elements, 
but  not  the  first.  Take  larger  bodies.  Carthage  violates 
treaties  so  systematically  as  to  give  rise  to  the  saying,  Punic 
faith  ( Punica  fides).  It  withholds  disgracefully  re-enforcements 
from  Hannibal.  It  does  not  regard  justice,  nor  honor,  but 
simply  profit.  In  Germany,  some  principality  stoops  to  a 
miserable  monopoly  for  revenue.  It  sacrifices  honor  for  gain. 
Everywhere,  then,  there  is  defect,  if  what  is  honorable,  what 
is  just,  what  is  useful,  are  not  all  of  them  regarded,  each  of 
them  in  its  proportion  and  place. 

In  these  subjects,  therefore,  we  must  imitate  the  perfect 
creations  of  nature  and  art.  We  there  see  co-ordinate  elements 
united,  with  one  predominating.    In  the  ray  of  light  are  three 


primary  colors  existing  together.  Looking  at  each  in  the 
Bpectrum,  we  see  that  each  but  predominates  in  the  red,  the 
yellow,  or  the  blue— the  other  two  being  interfused.  In  archi- 
tectural forms,  we  have  the  arch,  the  angle,  the  straight  line. 
The  noblest  buildings  of  the  world  present  ever  one  of  these 
dominating,  but  the  others  not  excluded.  In  music,  no  chord 
is  neglected,  but  one  dominates.  And  so,  passing  through  all 
domains  of  science  and  art,  we  shall  find  the  same  ordinance 
of  nature.  So  it  should  be  in  Ethics  and  Jurisprudence. 
Some  primary  color  prevails,— Virtue,  Duty,  or  Welfare,— but 
with  the  others  intermingled. 

Let  us,  then,  regard  the  principle  as  fixed.  In  some  rules 
of  morals  and  legislation,  Virtue  must  predominate,  but  Justice 
and  Expediency  may  not  be  disregarded.  The  act  of  Leonidas 
was  one  of  heroic  virtue ;  but  his  inscription  declared  obliga- 
tion, and  suggested  the  interest  of  the  State.  "  Tell  Sparta 
we  fell  in  obedience  to  her  laws."  In  some,  Justice  must  be 
sovereign,  but  Honor  and  Interest  are  not  to  be  excluded.  In 
gome,  what  is  useful  is  to  be  the  principal  object,  but  Virtue 
and  Justice  are  not  to  be  forgotten. 

The  definition  is  thus  fully  explained.  Law  is  a  rule  of 
action  ;  emanating  from  reason ;  in  the  form  first  of  an  idea, 
then  of  an  outward  expression  ;  for  some  good  in  or  through  the 
Bubject  directed  by  it ;  and  this  good  contains  three  elements, 
ever  united,  but  with  one  prevailing.* 

*  The  subject  of  this  lecture  is  sublimely  given  by  Sophocles  in  his  exquisite 
tragedy,  (Edipus  King.     The  chorus  says : 

-  May  my  words  and  works  be  made  divine  and  unsullied  by  laws:-laws  wlme 
fcoLsU'ps  are  on  hufh;  born  amid  the  heavenly  ether,  beaming  out  from  the  bright 
Fvnod  of  Immortal  Ones !  The  dying  nature  of  man  could  never  have  made  them. 
(Iblivion  can  never  bush  them  to  slumber.  Bn  thm  Almighiiue^  iiselflw^  gravd^ 
ear  and  never  grows  old." — d^'L  Ti/r.,  803-87  i. 


V 


IM'U 


•  *  -"I 


COLUMBIA  UNIVERSI 


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